I am satisfied that in the absence of any statutory denial of the right to withdraw lands within indemnity limits, for the benefit of a road, the exercise of such right by the land department, would have the effect to reserve such lands for that purpose, even although it might not have been contemplated by the grant, and that such right is now too well established to be called in question.

Again on page 528, it is said,

These lands were not subject to private cash entry while they were in a state of reservation, and hence the applicant cau acquire no right under an application made when the lands were not in a condition to be purchased.

In the case of McClure v. Northern Pacific R. R. Co., (9 L. D., 155) it is held in effect that when the withdrawal became effective, it reserved the land embraced therein from general disposal, and that a cash entry of such land after the map of general route was filed, but before notice of withdrawal, is illegal and does not except the land from the grant.

In Dinwiddie v. Florida Ry. and Navigation Co. (9 L. D., 74), it is held that lands included within pending selections were not restored to the public domain by the revocation of the indemnity withdrawal.

In view of the withdrawal of all the lands involved in these cases, your office correctly rejected the respective applications. The decision appealed from is accordingly affirmed.

PRACTICE -APPEAL SPECIFICATION OF ERROR.

UNITED STATES v. HULBERT.

An assignment of error that sets forth that the decision is "contrary to law and the facts, and is unjust, unreasonable, illogical and biased” is not sufficient to warrant consideration of the case on appeal.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, December 24, 1890.

In the case of the United States v. Levi W. Hulbert involving the latter's pre-emption cash entry for the SE.Sec. 18, T. 111 N., R. 66 W., Huron land district, South Dakota, Hulbert appeals from the decision of your office of November 12, 1888, holding said cash entry for cancellation.

Hulbert's assignments of error are as follows:

1st. Said decision is contrary to law.

2nd. Said decision is contrary to the facts.

3rd. Said decision is unjust, unreasonable, illogical, biased,

and he asks that the same be set aside.

Rule 88 of the Rules of Practice requires that the appellant shall file "a specification of errors, which specification shall clearly and concisely designate the errors of which he complains."

In the case of Pederson v. Johannessen (4 L. D., 343), it was held that the allegation that a decision "is contrary to the evidence" was insufficient, as a specification of error and the appeal was dismissed.

In Schweitzer v. Wolfe (5 L. D., 158), the appeal, which asked the reversal of a decision "for the reason that said decision was contrary to law, and the practice of the Land Department" was dismissed as defective "in that it does not set forth any specification of error as required by Rule of Practice No. 88."

In Horton v. Wilson (9 L. D., 560), the specifications-" 1. The Commissioner erred in dismissing the contest. 2. The Commissioner erred in sustaining the decision of the local office" were held insufficient.

In Devereux et al. v. Hunter et al. (11 L. D., 214), a specification asking the reversal of a decision "Because of the manifest errors in the conclusions of law and fact arrived at by the Commissioner in making the decision appealed from" was held "too indefinite to present any question."

The specifications of error here are, under the rulings in the decisions cited, insufficient, and said appeal is, therefore, because of the failure to comply with the requirements of said Rule of Practice, hereby dismissed.

PRACTICE-EVIDENCE-RULE 35.

DOHERTY v. ROBERTSON.

Failure to appear and submit testimony in accordance with an order made under rule 35 of practice, can not be excused on the mere allegation that the party in default was apprehensive that his testimony would not be fairly taken by the officer designated.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, January 9, 1891.

I have considered the appeal of James Robertson from your office decision dated May 10, 1889, holding for cancellation his timber culture entry for the NE of Sec. 14, T. 161 N., R. 60 W., Grand Forks, Dakota.

He made this entry October 2, 1884. March 17, 1887, Charles B. C. Doherty initiated a contest against the same and alleged in his affidavit "that the said James Robertson did not break or cause to be broken five acres during the year 1886, the second year after entry, as required by law, and that there was not now ten acres broken on said tract."

Upon this affidavit and corroborative affidavits being filed, and upon due notice, the local office ordered testimony to be taken before the clerk of the court of Cavalier county at Langdon on May 6, 1887, and that final hearing be had before the register and receiver May 11, lowing. Claimant, in answer to service, sent a written protest to the

fol

local office objecting to the testimony being taken at Langdon, for the alleged reason that "the clerk before whom testimony was to be taken and contestant are on the most intimate terms of friendship, and that Langdon is the home of both contestant and the clerk of the court." This protest was filed three days before the date set for taking testimony before the clerk. Testimony was taken at Langdon on the day set for that purpose, and a hearing was duly had before the local office upon the day set for said hearing, to wit: May 11, 1887. Claimant made default at both places.

On May 12, 1887, the next day after final hearing, he filed in the local office a number of affidavits, giving as a reason why he had not ploughed his land as required by law that the season of 1886 was so dry that it was impossible to have broken the ground.

July 7, 1887, the local office recommended claimant's entry for cancellation, and, upon appeal being taken to your office, by decision of May 10, 1887, you affirmed the judgment appealed from, and held the entry for cancellation.

Thereupon Robertson appealed to this Department, and assigned a number of errors, the principal one of which is, in substance, that he had had no opportunity to be heard where he could have a fair and impartial trial.

The record shows that the land in question is near Langdon, which is about ninety miles from the land office. Also that claimant lived about thirty miles from Langdon and about sixty-five miles from the land office. When contestant filed his affidavit, March 17, 1887, he requested that testimony be taken before some officer at Langdon. A notice was served on claimant of the contest and the time and place of taking testimony, March 17, 1887, yet he made no objection to the place of taking the same until May 3, three days before the testimony was taken. It was too late then to have changed the place of taking the testimony, even if there existed any real reason why claimant could not have a fair trial. The only excuse he alleges for his failure to appear is "that contestant and said officers are on the most intimate terms of friendship; that we fear to have our case heard and testimony taken at the home of the contestant, before his friend, and among his friends, and so far from where we reside or have any acquaintance."

There are no facts stated in this protest, and it does not show any just or legal grounds upon which to base his apprehension that he could not have a fair hearing before the clerk designated by the local office to take the testimony. At no time has the entryman shown that the clerk before whom the evidence was taken was prejudiced against him. The clerk had no power to prejudice his case. His duties were purely manual in reducing the testimony to writing as given by the witnesses, and it was the duty of Mr. Robertson to appear, if he desired to protect his rights, before the clerk and cross-examine contestant's witnesses and submit his proof in defense of his entry, and if he saw any evidence

of unfairness, take his exceptions thereto. He can not remain away and shield himself behind any imaginary fear which does not exist in fact. The presumption, in the absence of any showing by facts or circumstances to the contrary, is that he received justice and fair dealing, and I am inclined to the belief that he got it.

Under Rule 35 of the Rules of Practice of your office, the local officers are given discretionary authority to have testimony taken near the land in controversy before any officer authorized to administer oaths. It seems in this case that this discretion was wisely used. The testimony given before the clerk of the court at Langdon shows that the allegations made in contestant's affidavit are substantially true. Your decision is accordingly affirmed.

PRACTICE-JURISDICTION-PREFERENCE RIGHT.

LOGUE v. O'Connor.

Where an entry is canceled on an issue raised by a contest, in which the entryman appears and invokes the judgment of the Department, he will not subsequently be heard to allege that he had no notice of the case and is not bound by the decision.

After an entry is regularly canceled on contest, the defendant therein has no interest in the case that entitles him to be heard in the matter of the contestant's preference right of entry.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, January 8, 1891.

I have examined the case of Lent H. Logue v. Daniel O'Connor on appeal by the latter from your decision of May 1, 1889, holding that his homestead entry had been properly canceled and that Logue had acquired a preference right of entry for the SE.Sec. 35, T. 27 S., R. 31 W., Garden City, Kansas.

It appears that on September 14, 1885, O'Connor filed Osage declaratory statement for the NE. Sec. 26, T. 28 S., R. 25 W., Garden City, Kansas land district, alleging settlement September 7, 1885. On October 14, of same year he made homestead entry for the tract in controversy, and on May 10, 1886, made cash entry for the NE. of Sec. 26, T. 28 S., R. 25 W., on which he had filed the Osage declaratory statement.

On August 9, 1887, one Frank Davis applied to contest the said cash entry, and on October 1, 1887, your office held that while it was unlawful for O'Connor to hold two different tracts of land at the same time under pre-emption and homestead laws, yet you could not deny his right to make the cash entry, and therefore denied the application of Davis to contest the same, but the records of your office showing the homestead entry to be illegal, the same was held for cancellation.

From this ruling and decision O'Connor appealed to this Department,

and on November 20, 1888, the Department affirmed your said decision. (Vol. 86 Lands and Railroads, 109).

In the meantime, on July 26, 1887, Logue filed affidavit of contest against the homestead entry, charging that the same was illegal from its inception for the reason that at the date of making said entry the entryman was claiming the NE. Sec. 26, T. 28 S., R. 25 W., as a preemption right, etc. Notice was duly given of this contest, and on January 13, 1888, the parties appeared and the counsel prepared and submitted an agreed statement of facts, upon which the local officers on May 25, 1888, held that O'Connor was not a qualified entryman when he made the homestead entry, and recommended its cancellation. He ap pealed from this decision and on May 1st 1889, your office affirmed their findings of law, there being no dispute as to the facts, and you add,— But said homestead entry having been properly canceled as the result of the investigation brought about by Davis' application to contest, there remains nothing to do but approve your action and close the case, which I have done this day.

Thereupon you held that Logue having initiated this contest prior to the action of your office, canceling the entry, and having prosecuted the same, etc., he has acquired a preference right to make entry for the land.

From this decision O'Connor appeals to this Department and alleges

error

1st. In holding that defendant's entry was void ab initio.

2d. In not holding that the entry was validated when defendant procured his final certificate on his pre-emption claim, no adverse right having attached at that time. 3d. In canceling said entry in a case to which defendant was not a party and of which he had no notice. (See case of Frank Davis v. Daniel O'Connor).

4th. In granting Logue a preference right of entry on the tract . . . he not having paid the expenses of contest or procured the cancellation of said entry in any suit between the parties. Act of May 14, 1880 Sec. 2.

It appears that the decision of the Department canceling the homestead entry was promulgated December 17, 1888, and that on the 29th of same month Logue applied to make homestead entry for the land, asserting his preference right of entry and on the 31st of same month leave was granted and he thereupon made homestead entry for the tract in controversy.

It further appears, however, that on July 27, 1889, he filed in the local office at Garden City a relinquishment of said entry, thereupon cancellation of the entry was entered on the records.

In the matter of the appeal, the questions raised by the 1st and 2d assignments of error, are res judicata. This is so because the third assignment is not well taken. O'Connor was in court in the case of Davis v. O'Connor and appealed from your decision to this Department. It is true the Davis contest sought the cancellation of the pre-emption cash entry, and your office held adversely to him, but his contest raised the question of the validity of the homestead entry, and O'Connor being in court he was there for all purposes of that case, and having ap17581-VOL 12- -3