TIMBER TRESPASS-PUBLIC LAND.

HENRY WILLIAMS.

In view of the fact that the trespasser was misled as to the character of the land and his rights, and of the improbability of maintaining a civil or criminal action against him, his proposition to pay $2.50 per acre stumpage value, $2.50 per acre for the land, and the expenses of watching and caring for the wood, may be accepted.

Secretary Teller to Commissioner McFarland, October 4, 1884.

I am in receipt of your letter of the 26th ultimo, and the several documents therein enumerated, relative to the alleged trespass by Henry Williams, of Sweetwater, Nevada, in cutting cordwood from certain described public lands in California.

In view of the facts set forth, especially that Williams believed said land to be unsurveyed (such belief being based upon statements made by Mr. Garrard, deputy United States surveyor in that locality), and that he understood the land to be mineral land (as affidavits from B. T. Brown, district mining recorder, and other parties declare it to be, the records of your office to the contrary notwithstanding), and that he believed that, in any event (the land being in the immediate vicinity of mineral land) he had a right to cut timber therefrom for mining and domestic purposes; and in view of your suggestion as to the impossibility, under the circumstances, of maintaining either criminal or civil action against the trespassing party, I concur in your recommendation that Williams's proposition be accepted, to wit: That he pay for the wood its stumpage value of two dollars and fifty cents ($2.50) per acre, making a total of three hundred and twenty dollars ($320) for the fractional sections trespassed upon (aggregating 128 acres), and two dollars and fifty cents ($2.50) per acre for the land itself under the act of June 3, 1878, and that he pay all expenses incurred in watching and caring for said wood. You will notify the special agent and the proper receiver of public moneys accordingly.

PRE-EMPTION-FINAL PROOF.

INSTRUCTIONS.

The questions and answers in the printed forms for pre-emption proof must be read over to the witnesses by the officer taking the proofs; he cannot otherwise properly make the required certificate.

Such officer is required to test the reliability and the extent and means of knowledge of claimants and witnesses by cross-examining them.

Commissioner McFarland to register and receiver, Olympia, Washington Territory, October 6, 1884.

I am in receipt of information to the effect that you and other officers in your district before whom testimony in pre-emption cases is taken are not in the habit of asking each question in the printed blanks furnished

for taking testimony in such cases, but simply ask the affiant if he has read the affidavit and if that is his signature, such affidavit usually being signed when submitted, and then the party is sworn.

It is expected that each question and answer in such blanks will be read to the parties making the affidavit by or in the presence of the officer before whom such affidavits are made. Your attention is called to the notes appended to the forms of proofs prescribed in the general circular of this office, which require the officer taking proofs to certify over his official signature that the questions and answers were so read. It is not permissible for registers and receivers or other officers to make that certificate when the questions and the answers have not been read to the parties in the presence of the attesting officer, nor should proofs made otherwise be accepted by you.

Officers taking affidavits or proofs in public land cases are also required to cross-examine claimants and witnesses to test the reliability of their answers and the extent and means of the information of witnesses.

See Secretary's decision of January 30, 1884, in case of Henry Buchman (3 Rep., 275); also office instructions of April 3, 1884, to register and receiver, Huron, Dakota Territory (3 B. L. P., 253), and to regis ter and receiver, Humboldt, California, August 19, 1884 (3 L. D., 84).

Registers and receivers are expected to strictly comply with these instructions, and to advise all officers taking affidavits or proofs in public land cases of said requirements.

PRACTICE-APPEAL; INTERVENOR.

OJO DEL ESPIRITU SANTO.

Notice and grounds of appeal must be filed in the General Land Office, and served on the opposite party, within the time required by Rules 86 and 87.

One not a party to the record will not be recognized as appellant, nor as petitioner for rehearing, unless he first discloses on oath his interest in the case.

Assistant Commissioner Harrison to surveyor-general, Santa Fé, N. M., October 7, 1884.

It appears from your letter of August 12, 1884, that you notified the parties that the extension of time for appeal beyond October 1 could not be recognized, and that you forwarded to them, in each case, a copy of said office letter; (3 L. D., 59).

Under date of September 3, ultimo, H. M. Atkinson, as attorney for Mariano S. Otero and Pedro Perea, transmitted to this office their petition having reference to the survey aforesaid, and at the same date, as appears, filed with you an appeal of the same parties from the decision of this office of June 14, 1884, aforesaid (2 L. D., 425).

Said petition is in the name of said parties as "part owners of said grant," and sets forth upon information and belief that the survey to

which said decision relates is incorrect in other respects than that to which the amendment is directed, and that they purpose to forward proofs to substantiate their allegations-(the non-production of which with their petition they excuse)-said petition being directed, apparently, to the procuring of a review of the case in this office and the extension of the limits of the claim. It suggests that the appeal of the petitioners be held in abeyance for forty days to enable them to procure and forward their proofs. It is signed "Mariano S. Otero, Pedro Perea, by Henry M. Atkinson, their atty. in fact," and is only verified by the oath of said attorney, who deposes "that the matters and things set forth in the foregoing petition he believes to be true from information obtained relative thereto from credible parties."

First. The first question presented by this state of the proceedings is as to the validity of the appeal. Rule 86 provides that "notice of an appeal from the Commissioner's decision must be filed in the General Land Office, and served on the appellee or his counsel, within sixty days from the date of service of notice of such decision." Rule 87 allows ten days additional when the notice is given through the mails by the register and receiver or surveyor-general. The notice in this case was given by the surveyor-general, by mail, June 25. The seventy days allowed for appeal by the two rules referred to, therefore, expired September 3. The notice of appeal bears date September 23, and was received and filed in this office September 30, twenty-seven days after the time allowed by the rules. Rule 86 requires that, besides being filed in this office, the notice of appeal shall be "served on the appellee, or his counsel, within sixty days from the date of service of notice of such decision." Rules 93, 94, 95, and 96 prescribe the manner of service of such notice, and of making proof of the same. In this case no notice is alleged or shown to have been given. Rule 102 provides that "no person not a party to the record shall intervene in a case without first disclosing on oath the nature of his interest." The appellants are not parties to the record, nor is either of them a party thereto, the first appearance of their names in any proceeding in the case being in the petition and appeal aforesaid; and they have not, nor has either of them, disclosed on oath the nature of their interest, or of the interest of either of them, in the case or in its subject matter.

I must hold the appeal not well taken, it not having been filed in time, the parties thereto not being qualified to intervene in the case by reason of failure to make proof of interest as required, and not hav ing shown service of notice on any party as appellee.

Second. The appeal (which, if held valid, would take the case from the jurisdiction of this office,) being dismissed, the petition aforesaid remains to be considered. The same objections apply to its reception as to the appeal, under rules 102 and 99,-the petitioners not having disclosed their interest on oath, nor accompanied their petition with proof of service on any opposing party. The petitioners only allege

part ownership. The grant in the case was made to Luis Maria Cabeza de Baca, and the claim was confirmed to his numerous heirs, whose names are set forth in their petition to the surveyor-general for confirmation. Besides, there are the conflicting claims of Ignacio Chaves on the west, and of the Pueblos of Zia, Santa Ana, and Jemez overlapping the Ojo del Espiritu Santo claim,-both under grants senior to that of the latter, and, though unconfirmed, favorably reported to Congress for its action. The owners of these claims, as well as the co-owners of the petitioners in the Ojo del Espiritu Santo claim, should have been served with notice of the proceeding and copies of the petition; and for want of proof of such service and of the disclosure by the petitioners of their interest on oath, the petition cannot be received.

The petitioners are, however, at liberty to re-file the same, accompanied by the proper proofs, if they choose to do so.

HOMESTEAD-CONTEST.

KINCAID V. JEFFERSON.

Until the government takes some action to enforce the forfeiture of a homestead entry, contest against it may properly be allowed, although brought after the expiration of seven years from the date of the entry.

Where final proof has not been made in seven years, the local officers are required to promptly notify claimants that thirty days will be allowed them wherein to show cause why their entries should not be canceled.

Commissioner McFarland to register and receiver, The Dalles, Oregon, October 7, 1884.

I have received your letter of August 12, 1884, transmitting the record of contest in the case of John L. Kincaid v. Thos. Jefferson, involving the W. of SE. of Sec. 34, T. 1 S., R. 23 E.-homestead entry No 25, dated Nov. 18, 1875.

At the date of filing contest, April 26, 1884, more than seven years from date of entry had elapsed. It has been sometimes ruled that contest should not be allowed after the expiration of such time, because the entry is then subject to cancellation for failure to make proof, and a contest is not necessary in order to clear the record of the forfeited entry. It is my opinion, however, that until the government takes some steps to enforce the forfeiture, contest may properly be allowed.

In the present case contest was brought on the ground of abandonment; notice by publication; no appearance by claimant. The evidence shows that Kincaid never resided upon, improved, or cultivated the land. Your decision is in favor of contestant, and the same is affirmed, and the entry canceled.

Your attention is called to the fact that nearly a year and a half had elapsed after the expiration of seven years from date of entry in this case, and no steps toward canceling the entry for failure to make proof had

been taken, notwithstanding your explicit instructions under circular of December 20, 1873, which require registers and receivers in every case when proof has not been made at the expiration of seven years to notity the party of his non-compliance with the law, and that thirty days from service of notice will be allowed him to show cause why the claim should not be declared forfeited, and the entry canceled.

A form of notice for this purpose is furnished, and registers and receivers are required to forthwith report to this office upon the expiration of said thirty days.

You are enjoined that these rules must be strictly complied with, and registers and receivers should be careful to see that delay is not permitted to occur in giving the required notices and forwarding their reports.

TIMBER TRESPASS-SETTLER'S CLAIM.

J. HUNTLEY.

Down timber on unsurveyed public land may be used by an actual settler thereon under the pre-emption or homestead law.

Commissioner McFarland to J. Huntley, Ellensburg, Oregon, October 10, 1884.

SIR: I am in receipt of your letter of the 23d instant making inquiries in regard to the disposal of "down" timber on unsurveyed land. You are informed that since settlement upon unsurveyed lands may be made the basis of a homestead or pre-emption entry to the extent of 160 acres, a person occupying and claiming such land under said laws is deemed entitled to the use of the timber. Actual settlers will not be interfered with in taking so much timber as they may need for their own use and the support of their improvements.

You are, however, informed that existing restrictions in regard to the taking of public timber apply equally to unsurveyed as to surveyed lands.

PRIVATE CLAIM-MEXICAN GRANTS.

EL TAJO GRANT.

Instructions concerning investigation and report by the local officers, upon a Spanish or Mexican grant in New Mexico, under act of July 22, 1864.

Commissioner McFarland to surveyor-general, Santa Fé, New Mexico, Oc

tober 10, 1884.

In your letter of August 8th last, relating to the El Tajo claim, originating under an alleged Spanish or Mexican grant to Diego de Padilla, you recommended an investigation of said claim.

Referring to said recommendation, your attention is called to the 8th Section of the act of July 22, 1854 (10 Stat., 308), and the instructions