IRREGULAR ENTRY-CONTEST-PRE-EMPTION-FILING.

THOMAS ET AL. v. SPENCE.

An entry improperly allowed for land embraced within an existing swamp selection, may be allowed to stand, on the cancellation of said selection, if such action does not defeat or impair the right of an adverse claimant.

A contestant will not be heard to question the validity of an entry thus allowed, on the ground of its alleged irregularity, unless he shows that the allowance of said entry is in violation of his prior right or equity.

An application to contest a pre-emption filing does not confer any right or equity upon the contestant in the event that such filing is subsequently canceled.

Acting Secretary Chandler to the Commissioner of the General Land Office, June 19, 1891.

This appeal involves the right to the NW. of the SW. of Sec. 29 and the NE. of the SE. of Sec. 30, T. 63 N., R. 11 W., Duluth, Minnesota.

These lands were selected by the State of Minnesota as swamp and overflowed lands, July 20, 1885-the day the township plat was filed in the local office-but the claim of the State was finally rejected as to the NE. of the SE. of section 30, March 2, 1889, upon the contest of Angus McDonald, filed May 17, 1886, and as to the NW. 1 of the SW. of section 29, on April 2, 1889.

Prior to the final action of the Department rejecting the claim of the State, Margaret A. Spence was allowed to make soldier's additional homestead entry of both of said tracts-to wit, August 17, 1887.

Morris Thomas, H. Spencer Moody, Daniel W. Smith, and Frank M. Thomas, severally, applied to contest this entry, all of said contests alleging, substantially, the same ground-to wit: that at the date of the entry, the land was embraced in the State selection, and that it was allowed in total disregard of the subsisting rights of others.

It also appears from the record that on April 28, 1887, prior to the entry of Spence, Fred. F. Huntress filed an application to contest the claim of Angus McDonald, who had filed a pre-emption declaratory statement for the said NE. † of the SE. of Sec. 30.

Your office, by the decision of November 7, 1889, rejected all of said contests, and held that, although the entry of Spence was irregularly allowed prior to the final cancellation of the State's selection, yet the bar having been removed there is no reason why it should not remain intact.

The application of Huntress was disposed of upon the ground that the Secretary, in the decision of the Department of February, 1889, in the case of Hyde and McDonald v. Eaton, had held that Huntress was not entitled to the preference right of entry as a successful contestant, and his application was so considered and treated by your office, and was denied. From this decision the several applicants appealed.

It is shown by the record that the tracts in controversy were in reservation at the date the homestead entry of Spence was allowed, having been selected by the State of Minnesota as swamp and overflowed lands, and the claim of the State to said tracts was then pending before the Department on appeal. Said entry was therefore improperly allowed; but having been allowed and placed of record, it may remain intact after the bar of the reservation has been removed, unless the allowance of such entry will affect or impair the rights of others. Schrotberger v. Arnold, 6. L. D., 425; Wright v. Maher, Ib., 758; Richard Griffin, 11 L. D., 231.

Where an entry was allowed pending an appeal from the rejection of an indemnity selection by a railroad company, it was allowed to stand to await the final action of the Department upon said selection. Northern Pacific Railroad Company v. Halvorson, 10 L. D., 15; see also Russell v. Gerold, Ib., 18.

After the cancellation of the State's selection, the question, as to the validity of an entry made while the land was so appropriated, is one solely between the government and the entryman, and the entry may be allowed to remain intact, subject to future compliance with the law, unless the allowance of such entry would be in derogation of the rights of adverse claimants. A contestant will not be heard to question the validity of such entry upon the ground that it was invalid when allowed, unless he shows that the allowance of the entry would be in violation of his rights, or would defeat a prior right or equity. Meyers v. Smith, 3 L. D., 526.

It is therefore necessary to examine the claims of the several appli cants to determine what rights, if any, to the tracts in controversy subsisted at the date of the entry.

As to the claim of Huntress, it appears that Angus McDonald filed a contest against the claim of the State to the NE. of the SE. 4 of Sec. 30, May 17, 1856, and upon the testimony taken at a hearing had thereon the Commissioner, on March 11, 1887, canceled said selection, which was affirmed by the Department on March 2, 1889, on the appeal of the State.

On March 11, 1887, McDonald filed pre-emption declaratory statement for said tract, alleging settlement August 20, 1884, and on May 5, 1887, Huntress, a claimant under the State, applied to contest said filing, alleging that it was made for speculative purposes. On December 5, 1888, McDonald relinquished said filing, which Huntress contends was by reason of his contest, and it is upon this action that Hunt. ress bases his claim to a preferred right of entry.

Conceding that the cancellation of the State's selection was the result of the contest of McDonald, and that by reason thereof he was entitled to the preference right to enter said tract, or that he had the prior claim to the land after cancellation by virtue of his settlement and filing, I do not see how that would have secured to Huntress a preference right by reason of his contest against McDonald.

The pre-emption filing of McDonald, even if it had been legal, was not in the way of Huntress, who was as much entitled to place a filing of record as McDonald. The rule is well settled by numerous decisions of the Department that a pre-emption filing is not ordinarily subject to contest prior to the offering of final proof, and an application to contest a mere filing does not confer any right or equity to the land after such filing has been canceled. Sprague v. Robinson, 1 L. D., 469; Percival v. Doheney, 4 L. D., 134; Bailey v. Townsend, 5 L. D., 176; Peterson v. Ward, 9 L. D., 92.

It must follow that the application of Huntress to contest the filing of McDonald conferred upon him no right or claim to the tract that was defeated or in any wise impaired by the allowance of said entry.

On October 12, 1888, Frank P. Harrington applied to contest the claim of the State to said NE. of the SE. of Sec. 30, and to enter said tract. This application was refused by the local officers, and their action was sustained by the Commissioner of the General Land Office, December 14, 1888. No appeal was taken from this decision, and Harrington is not a party to this record.

On November 19, 1888, Morris Thomas filed affidavit of contest against the entry of Margaret Spence, alleging (1) that at the time said entry was allowed, the land was embraced in a selection by the State of Minnesota, under the swamp land grant; and (2) that with respect to a portion of said land it was allowed in total disregard of other subsisting rights.

No prior right or claim to the land is alleged by Thomas, or shown by the record, and if said entry was allowed without regard to the subsisting rights of others, Thomas could not take exception thereto, without showing that his own right or claim had been disregarded. His contest is therefore controlled by the principle heretofore stated-to wit: that when an entry has been improperly or illegally allowed because of a prior entry or other appropriation of the land, it may be allowed to stand, after the removal of such prior entry or appropriation, if it will not defeat or affect subsisting rights.

The same may be said of the contests of Moody, Smith, and Frank L. Thomas, none of whom have alleged or shown any prior right or claim to the land, and who are contesting upon substantially the same grounds as those alleged in the contest of Morris Thomas.

The decision of your office, sustaining the entry of Spence, is af firmed.

17581-VOL 12-41

CONTEST--JOINT OPINION OF LOCAL OFFICERS.

ANDERSON v. MORRISON.

If, by inadvertence, either the register or receiver should fail to sign an opinion that is really the opinion of both, such failure does not warrant the reversal of the judgment; and in such case the name omitted, at any time before the record is transmitted, may be subscribed to such opinion nunc pro tunc.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, June 20, 1891.

Ezra W. Morrison made homestead entry No. 4250, on March 19, 1886, upon the SW. of Sec. 12, T. 26 S., R. 25 E., Visalia, California. On August 11, 1887, James E. Anderson filed his affidavit of contest against the entry, charging abandonment.

Hearing was duly had, and the register and receiver on January 27, 1888, dismissed the contest, and on appeal you, by your decision of January 6, 1890, affirmed that judgment.

Contestant again appeals.

The facts are substantially set forth in the decision appealed from. Claimant did not testify; three witnesses gave testimony for contestant; the evidence of two of them is of a negative character, and not sufficient to warrant the cancellation of the entry; that of the third is favorable to claimant. The allegation of abandonment was not sustained, and the contest was properly dismissed. The testimony, as a whole, dem. onstrates the wisdom and importance of observing the initiatory steps required in Rule 3 of Practice, that "the affidavit of the contestant must be accompanied by the affidavits of one or more witnesses." The local officers ignored this rule.

It is insisted that the opinion of the local office was changed and mutilated after the appeal therefrom was taken. The appeal assigned, as one of the errors, the alleged fact that the register alone signed the opinion.

When the appeal reached your office, the names of both register and receiver were found duly subscribed thereto.

It is again insisted that, when the appeal was first taken, the reg ister's name alone was subscribed to the opinion, and that if the receiver's name now appears thereon, it was placed there without the knowledge or consent of contestant or his attorney, and without notice. In support of this statement, the affidavits of contestant and his attorney (E. T. Cooper) are filed in the record.

The judgment against an unsuccessful litigant is always supposed to be" without his consent."

Rule of Practice 51 directs the register and receiver upon the termi nation of a contest to render a joint opinion in the case, and Rule 48 provides that in case of failure to appeal from the decision of the local officers, their decision will be considered final as to the facts in the

case, and will not be disturbed by the Commissioner, except in four cases there stated, the third being "In event of disagreeing decisions by the local officers."

It is clearly the duty of both register and receiver to render an opinion; if they agree, it is a "joint opinion," and should be signed by both; if they disagree, there should be separate opinions, when you will determine and pass upon the merits of the case from the record before you. If, by inadvertence, either the register or receiver should fail to sign an opinion that was really the opinion of both, it would be no sufficient reason for reversing the judgment, and in such case the name omitted might at any time, before the record is transmitted to your office, be subscribed to the opinion, nunc pro tunc. The judgment appealed from is affirmed.

ORDER OF CANCELLATION-APPLICATION.

CODER v. LOTRIDGE.

The cancellation of an entry by order of the General Land Office takes effect as of the date when said order is made; and the fact that such order is not formally executed in the local office, will not operate to defeat an application to enter filed subsequently to the date of said order.

An application to enter is equivalent to an actual entry so far as the rights of the applicant are concerned, and while pending reserves the land from any other disposition.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, June 17, 1891.

I have considered the case of Samuel N. Coder v. Jacob Lotridge, upon the appeal of the latter from your office decision reversing the judgment of the register and receiver, and holding the entry of Coder intact and the filing of Lotridge for cancellation, for the NW. † of Sec. 9, T. 7 S., R. 22 W., Kirwin land district, Kansas.

The record shows that on the 29th of June, 1878, Judson W. Morehouse made timber culture entry for the land in question, which was canceled by decision of your office on the 19th of September, 1882, for non compliance with the law.

The land remaining vacant, and unimproved until the 5th of January, 1884, Samuel N. Coder, on that date, applied to make timber culture entry for the same, but was informed by the local officers that the entry of Morehouse was still in force, and a bar to his entry. He then instituted contest against the Morehouse entry, which was decided in his favor.

This decision, and the papers in the case, including Coder's affidavit and application to make entry for the land, were transmitted to your office by the register on the 11th of August, 1884, and on the 30th of September, 1886, your office rendered decision, dismissing Coder's con