CONTEST-NOTICE; CERTIORARI,

NORTHERN PACIFIC RAILROAD COMPANY v. SCHOEBE.

Where A. acted as attorney for contestants in initiating contest, but B. acted as their attorney at the hearing, notice to A. of the decision is sufficient under Rules 44 and 106.

Certiorari will not lie where the petitioner has suffered no material injury, or where the petition fails to set forth wherein the petitioner has been injured.

Secretary Teller to Commissioner McFarland, November 11, 1884.

I have considered the petition of the Northern Pacific Railroad Company, filed by its resident attorney, asking for an order directing you to allow an appeal by said company from the decision of the register and receiver of the land office at Vancouver, Washington Territory, in the case of said Company v. Charles. E. Schoebe, involving the latter's homestead entry, No. 5312, for the W. of the N. E. 4, the S. E. of the N. 1 W. 4, and Lot 1, in Sec. 17, T. 10 N., R. 7 W.

The allegations in said. petition are, that at the hearing ordered by the local land officers, in accordance with instructions from your office, said company was represented by local attorneys; that notice of the decision of the district officers was sent to Paul Schulze, general agent of the company, at Portland, Oregon, and none was given to the local attorneys, who had the case directly in charge; that Mr. Schulze supposed that the notice to him was a mere matter of form, and that the local attorneys had also been notified; and that upon learning from your decis ion that no appeal had been filed from the decision of the district officers, Mr. Schulze immediately informed the local attorneys, and they promptly filed the necessary appeal and asked that the same be allowed. This request was refused by you on the 29th ultimo, on the ground that notice of said decision was sufficiently given to the company, and it must be bound thereby.

It appears from your said decision, that the protest against said entry and the request for a hearing were signed by said Schulze, and that, in the initiation of the contest, he acted not only as general agent, but also as attorney for said company. You also state in your decision of the 29th ultimo, that "it has been the uniform practice of the local officers in Washington Territory, in case of giving notice of any action they might take affecting the interests of the Nor. Pac. R. R. Co. to address the same to Paul Schulze, Portland, Oregon, and such notice seems to have been acted upon." If this be true, and it is not denied, it is difficult to see how Mr. Schulze could regard the notice of the decision adverse to the company "as a mere matter of form." It is not stated in the petition that the local attorneys were directed to take an appeal from said decision in case it should be adverse to the company, nor is it shown wherein "justice has not been done." At said hearing the reg ister and receiver found from the evidence that Schoebe settled upon

said tracts, on August 9 or 10, 1870, which was prior to the date when the legislative withdrawal for the benefit of said company becarie effective, that he has continued to reside upon said tracts for more than five years from the date of said settlement, and that he has not relinquished his right to the same. It does not appear, therefore, that the company has suffered any material injury, and in such a case certiorari will not lie. See the Montague Placer Mine;* also the Dobbs Placer Mine (1 L. D., 578).

Again, the notice of the decision of the district officers was given to said Schulze, the attorney who initiated the contest, and, under Rules of Practice Nos. 44 and 106, is clearly sufficient. The failure of the company to appeal from the decision of the local officers must be considered a waiver of its claim. Benson v. N. P. R. R. Co. (7 C. L. O., 34); Weber 2. Western Pacific R. R. Co. (6 C. L. O., 19); Ergler v. Walker.†

The petition fails to show absence of laches on the part of the agents of the company, and does not set forth wherein the company has been injured by the decision of the district officers; (Hilliard on New Trials, 698). It must, therefore, be denied.

SURVEYS-THE DEPOSIT SYSTEM.

INSTRUCTIONS.

When deposit of estimated cost is exceeded by actual cost of survey, additional deposits must be required. Township plats will not be filed, when surveys are made under the deposit system, until all costs are deposited.

Acting Commissioner Harrison to surveyor-general, Tucson, Arizona, November 12, 1884.

SIR: In reply to your letter of the 31st ultimo relative to the refusal of a depositor to make an additional deposit covering the excess of cost

* MONTAGUE PLACER MINE.

[Secretary Teller, March 22, 1883; (1 B. L. P., 53).]

"The application (of Ambrose, for certiorari) is deficient in the matter of statement, under the rule laid down in the case of Wright r. St. Bernard M'g Co., (1 Rep. 90), there being no specific recital of your decisions upon the subject-matter, nor any copy of the decisions." "But upon the broadest assumption set up by the petition, there is nothing which can result in material injury to Ambrose." The petition is denied.

ERGLER T. WALKER.

[Secretary Teller, April 12, 1883; (10 C. L. O., 34).]

"Both parties filed pre emption declaratory statements, and, after hearing, the local officers ... recommended that Mr. Walker be permitted to enter" the land. There was no appeal. Unless a case falls within the exceptions specified in Rule 47, "I do not understand that you are authorized to disturb, or in any way interfere with, an unappealed decision of the local officers." Ergler's case does not fall within said exceptions. His appeal from your decision "cannot restore rights lost by failure to appeal from a decision of the local officers which has become final."

of a survey above the amount originally deposited as the estimated cost thereof, I have to state that, inasmuch as the United States contracts with deputy surveyors to pay them a certain sum per mile for every mile or part of a mile actually run and marked in the field, deputy surveyors are entitled to the full compensation found to be due to them upon the adjustment of their accounts. This applies as well to surveys. made under the deposit system as to those payable from appropriations, with this distinction: that for surveys under appropriations the deputies are compensated by the United States from the annual appropriations made by Congress, while for surveys under the deposit system they are compensated from deposits made by settlers.

As settlers are furnished with merely the estimated cost of any desired survey, that amount is not binding upon the surveyor. He is entitled to the mileage allowed by law for every mile or part of a mile run, and should the actual cost, upon the completion of the survey, be found to be in excess of the deposit made to cover the estimated cost, the settler should in all such cases be called upon for an additional deposit; and any failure upon his part to comply with such demand should cause the plat of the township, within which the land of the settler is situated, to be withheld from the local office until a compliance is had.

In cases of the above character you will note in your letters, transmitting the plat and field notes and account, the withholding of the register's plat, referring to this letter.

TIMBER CULTURE-RELINQUISHMENT; CONTEST.

BEERS v. MILLER.

One who makes and relinquishes a timber-culture entry (for another's benefit) exhausts his right under the law. One who contests and procures cancellation of a second and illegal entry acquires a preferred right of entry.

Secretary Teller to Commissioner McFarland, November 14, 1880.

I have considered the case of Charles A. Beers v. George T. Miller, on the appeal of Miller from your decision of May 3, 1884, holding for cancellation his timber-culture entry for the NE. 4 of Sec. 35, T. 102, R. 61, Mitchell, Dakota.

May 9, 1879, Miller made entry, and March 21, 1883, Beers made affidavit of contest to the effect that the said entry was illegal, because Miller prior to making the same had exhausted his rights under the timber-culture law by making an entry thereunder in Iowa, which he subsequently relinquished. On this allegation Beers asked leave to contest and made formal application to enter the land. April 24, 1883, your office authorized a hearing, which was duly had July 24, 1883. In support of his allegations, the contestant offered testimony to the effect that Miller was the same man that in the name of "George Miller" made

a timber-culture entry in O'Brien County, Iowa, in 1878, and that afterwards Miller relinquished said entry for the benefit of one Sprague. The entryman did not offer any testimony in defense.

You state that the records of your office show that "George Miller" made entry for the N. of NW. 1, Sec. 2, T. 95, R. 42 W, Iowa, June 28, 1878; that said entry was canceled for relinquishment November 7, 1878; and that a comparison of the signatures to the applications show them identical in handwriting and only differing as to the initial letter "T," which is omitted from the Iowa application. It is quite evident that the contestant has made out his case. If there was any doubt on the point it would disappear before the fact that Miller has remained silent under the charge so far as a denial of the same is concerned, and I therefore concur in your conclusion that the entry should be canceled. Counsel for Miller, bowever, urge that if his entry is canceled that Beers will take nothing thereby as a successful contestant. In the case of Buse v. Robert (2 L. D., 290), this Department held that, although the timber-culture law did not specifically authorize a contest based upon an allegation that the land was not subject to entry on account of timber growing naturally thereon, yet if the contest has been accepted for the benefit of the government, and upon the proofs furnished at the expense of the contestant the entry has been declared invalid and canceled, then the contestant is entitled to a preference right under the act of May 14, 1880. In the case of Caroline Halvorson (Idem, 302), which arose upon an allegation similar to that in Buse v. Robert, the Department again held that the contestant was entitled to a preference right of entry. In the cases cited the entries were invalid, because the land was not subject to appropriation under the timber-culture law, while in this case the entry is invalid because Miller was not competent to appropriate the land under said law; but in one case as well as in the other a showing of the facts must result in cancellation of the entry, and I see no reason why the informant herein should not be entitled to the same benefit as allowed in the analogous cases already decided. Your decision is affirmed, and the preference right of entry awarded to Beers.

RAILROAD GRANT-RELINQUISHMENT.

ATLANTIC, GULF & W. I. TRANSIT Co. v. BESSENT.

The relinquishment by this company in favor of actual settlers prior to March 16 18-1, applies to lands within the indemnity limits.

Secretary Teller to Commissioner McFarland, November 14, 1884.

I have considered the case of the Atlantic, Gulf and West India Transit Compauy v. William V. Bessent, involving the S. of the NE. , and the N. of the SE. 4, of Sec. 31, T. 14 S., R. 24 E., Gainesville,

Florida, on appeal by said company from your adverse decision of January 31, 1883.

Said tracts are within the fifteen-mile indemnity limits of the Tampa Bay portion of the grant to said road. Bessent applied to make homestead entry of said lands January 17, 1883. The application was rejected by the local office, because the lands were upon an odd section within said railroad limits. Said company, on the 25th day of June, 1881, waived its right to all lands under said grant in favor of "all actual bona-fide settlers who made improvements prior to the 16th day of March, 1881;" (2 L. D., 565). The record contains proof that said Bessent became such bona-fide settler in July 1877, and made valuable improvements long prior to March, 1881. For this reason I affirm your decision directing the entry to be allowed.

HOMESTEAD-DESERTED WIFE.
MARY LEWIS.

A. made homestead entry in 1879, and complied with the law until April, 1883, when he deserted his wife and abandoned the land; his wife resided on and cultivated it until November following, when she removed to a neighboring town, in order the better to provide for herself and children, leaving thereon a part of her household goods; on February 29, 1884, A's relinquishment was filed, and B. filed a declaratory statement alleging settlement in the preceding January; A's wife applied for reinstatement of his entry on March 29, 1884; held that she had no rights under her husband's entry, but that she may enter in her own right under the rule laid down in the case of Murphy v. Taft.

Secretary Teller to Commissioner McFarland, November, 15, 1884.

I have considered the appeal of Mary Lewis, deserted wife of John T. Lewis, from your office decision of May 19, 1884, denying her application for reinstatement of her husband's homestead entry No. 3493 of the N. of SE. 4, and SE. 1 of SE. 4, of Sec. 17, T. 35 N., R. 3 E., W. M., Olympia, Washington Territory.

John T. Lewis made said homestead entry October 21, 1879, and it was canceled February 29, 1884, for voluntary relinquishment. Whereupon, the same day, one Nelson Gorten tiled declaratory statement No. 8298 for the tract in question, alleging settlement January 12 preceding.

It transpires through her application (embodied in a duly corroborated affidavit filed in the local office on or about March 29, 1884) that the said John T. Lewis made said homestead entry, and complied with legal requirements until April, 1883, when he abandoned the land and deserted her, and has not since returned; that about the time of his abandoning her he gave her a moiety of his personalty, and surrendered possession of his duplicate receipt and all the improvements upon the premises to her; that she and her five children continued to reside