August 29, 1882; but being interrupted by an interlocutory proceeding, was continued September 24, 1883.

At the hearing it was proven that in May, 1881, Givens laid the foundation for a house, and between that time and the date of his filing (August 31) plowed several acres of land. Between the last of August and the 14th of December (the date of the location of the half-breed scrip), he dug a well, hauled boards, joists, studding, etc., which he (being a carpenter) framed and piled together near the foundation before mentioned, preparatory to erecting a building. As there was but one mill in the vicinity, and that was constantly occupied in sawing timbers for the Northern Pacific Railroad Company, it was very difficult to procure lumber, and impossible to obtain doors, window-sash, or shingles, wherewith to put up his house that fall; but he did so as early in the following spring (March) as the weather would permit. During February he lived in a tent upon the tract; at no time had he any other home, nor did he at any time express, indicate, or entertain any other purpose than to take up his residence upon the land at as early a date as possible.

In this case there is no dispute as to the facts; contestant's attorney himself testifies to seeing the breaking upon the tract in the fall of 1881, and the lumber piled upon the spot where the house was afterward erected. There is but one question in the case as presented for my consideration, and that is a question of law: Is a tract of land upon which several acres have been broken, the foundation laid for a house, and as much lumber as could be obtained, prepared for its place in the building and piled together, but upon which the pre-emptor has not yet (within three months and ten days after filing his declaratory statement) taken up his actual residence-is such a tract subject to location of Sioux half-breed scrip, under the act of July 17, 1854, (10 Stat., 314,) which provides that such scrip may be located upon "unoccupied lands?"

In my opinion the tract in controversy was legally "occupied" at the time of the location of the scrip aforesaid, and the entry made therewith should therefore be rejected.

The decision of your office is affirmed.

ARSENAL ISLAND-REVIEW.

ROBERT CARRICK.

A decision by the head of a Department will not be disturbed by his successor except under different facts, a change of law, or other exceptional or anomalous circumstances.

Secretary Lamar to Commissioner Sparks, May 25, 1885.

On September 1, 1883, Robert Carrick made application to your office for the survey of an island in the Mississippi River, opposite the city of St. Louis, commonly called and known as "Arsenal Island," for

the purpose of having the land placed in the market for disposal in accordance with the provisions of law and the regulations of the land office he (Carrick) alleging settlement and improvement thereon and his qualification to pre-empt the same. After due notice to all parties interested or supposed to be interested, and upon due consideration, your office concluded that the title to said island was in the city of St. Louis, but, while rejecting Carrick's application, referred the matter to this Department for examination and instructions.

On May 16, 1884, my predecessor, Secretary Teller, after a full review of all the facts and the law touching the matter, while not committing himself as to the question of title, concurred with your office, and rejected Carrick's application. (2 L. D., 456.)

A motion for review of that decision was filed, on the ground that error had been committed in holding that the testimony showed the island to be a mere moving mass of alluvial deposit, from one end to the other; and with the motion were filed the affidavits of two civil engi neers, who stated that from their personal knowledge the island had become permanent and fixed land. It was held that this testimony only had the effect of producing a conflict with that on file at the time of the former decision, and was not sufficient of itself to cause a re. versal of the same on review; and further that inasmuch as the War Department, under the appropriation acts for the improvement of the Mississippi River, was operating upon the island, and it was unknown to what extent or for what purpose the Government might require the same in connection with the great public work about which it was engaged, it would be improper under the circumstances to order a survey. So the application for rehearing was denied by Acting Secretary Joslyn (2 L. D., 468).

On March 21, 1885, the attorney for Carrick filed another application for review, alleging no new matter for consideration further than that the Acting Secretary had denied said motion without the knowledge of counsel, or without hearing oral argument-for making which an opportunity is now asked.

The fact that the opportunity for an oral argument is now sought adds no force to the application, which after all is but an effort to obtain a review, not only of the decision of my predecessor, but of his refusal to revoke the same; and this, too, not on any new grounds or testimony, but on the bald assumption that error was committed in the conclusions arrived at.

It has been the well-settled practice, since as far back as 1825, to regard a subject once disposed of by the proper Executive Department as having been finally settled, except under different facts, a change of law, or other exceptional or anomalous circumstances. (4 Op. Atty. Gen., 341; 15 id., 315.) No circumstances are here presented which would warrant a departure from this wise and conservative rule.

Indeed were the application for review now presented for the first time it would be denied, for the sufficient reasons given by Acting Secretary Joslyn.

The motion is overruled.

CONTEST-PREFERENCE RIGHT.

KIRTLAND v. HUTTO.

The question of the right of a successful contestant to waive his preference right of entry is one with which the government has no concern.

A contest against a homestead entry based on want of residence must be in conformity with section 2297 of the Revised Statutes.

Acting Secretary Muldrow to Commissioner Sparks, May 27, 1885.

The case of Francis R. Kirtland v. Christopher C. Hutto has been considered, on appeal by Mrs. Kirtland from the decision of your office dated April 16, 1884, dismissing the contest.

Hutto made homestead entry No. 14,029 January 15, 1883, covering the SW. of NE. 1; NW. 1 of SE. and S. of SE. 4 of Sec. 14, T. 6, R. 27, Montgomery, Alabama.

March 13, 1883, Mrs. Kirtland filed an affidavit, setting forth her residence on the tract for more than two years; that her husband abandoned her in December, 1882; that he relinquished their rights to the tract without her consent; and charged Hutto with not being an actual resident of the land. On these allegations a hearing was ordered by the local officers, at which both parties appeared.

The record of the case shows that Benjamin T. Kirtland, the husband of Mrs. Kirtland, contested homestead entry No. 6463 for the tract, made by Abram Reese January 22, 1875, which entry was canceled by your office January 11, 1883, and notice received by the local officers January 15, 1883.

Kirtland, instead of exercising the privilege of entry inuring to him under section 2 of the act of May 14, 1880, (21 Stat., 140,) by reason of the cancellation of the Reese entry, sold the improvements on the land to Hutto and executed a relinquishment of his claim to the tract.

On January 15, 1883, Hutto presented the Kirtland relinquishment to the local officers, and was permitted to make homestead entry of the tract.

The question of the right of Kirtland to waive his preference right is one with which the government has no concern.

No charge of fraud is made against Hutto in his connection with the affair, and there was no reason for citing him to a contest on a charge of want of residence for a period of less than two months subsequent to his entry. See Section 2297 of the Revised Statutes.

I affirm said decision.

PRACTICE-ORAL HEARING.

GEORGE T. BURNS.

Oral arguments in ex parte cases are not encouraged except in special cases and on good reasons shown therefor.

Acting Secretary Muldrow to M. C. Burch, Grand Rapids, Mich., May 27, 1885.

Referring to your letter of the 30th ultimo, in which you state that "yesterday, I sent you by mail a brief in the case of George T. Burns," and ask that you may have a reasonable notice of the time for the hearing of said case, in accordance with the letter of this Department, dated February 25, last, you are advised,

1st. That your brief has not been received.

2d. That oral hearings are governed by No. 110 of the Rules of Practice, and that in ex parte cases oral arguments are not encouraged, except in special cases, and good reasons shown therefor.

3rd. That in the letter from this Department, above referred to, you were advised, not that you would receive "notice of the time for the hearing of said case," but "that you will have ample time for preparation before the same will be reached in due course of business."

The case is now regularly reached, but action will be suspended therein for fifteen days, to enable you to forward a duplicate of your brief, or take such further action as may seem best to you.

SURVEY OF ISLANDS.

ANTHONY WYLAND.

In the survey of an island situated in a river due regard should be had for the rights of owners on either bank thereof.

Acting Secretary Muldrow to Commissioner Sparks, May 27, 1885.

I have examined the matter presented by your letter of the 21st instant, relative to the application of Anthony Wyland for the survey of an island situated in the Mississippi River, in Sec. 17, T. 28 N., R. 23 W., 4th Meridian, Minnesota, and said to contain about twelve acres. It appears the improvements thereon (a frame dwelling and three-fourths of an acre of ground cleared) were made by applicant; also that said island is about ten feet above high water mark and two hundred feet from the nearest shore. Due notice was served on the owners of the land opposite the island, since which nearly a year has elapsed and no protest has been filed. You state that no objection to the survey is known to your office, but no recommendation in terms is made.

7747 LAND- -36

The Department sees no objection to a survey as asked, and it may be made at your discretion.

It appears from your letter, and from the plats, that there is in the immediate vicinity of the island in question at least one other, unsurveyed. If any survey is to be made, it would be well to have it include all unsurveyed islands in the locality mentioned, which are properly subject to survey, due regard being had, under the rule laid down by the Supreme Court in the case of Railroad Company v. Schurmeir (7 Wall., 272,) for the right of owners of lands on either bank of the river.

APPEAL-HEARING; SETTLEMENT-RESIDENCE.

TURNER . ROBINSON.

The appellant is estopped by his appeal from denying the jurisdiction of the Department to pass upon the whole record.

While an appeal may be taken from the refusal of the Commissioner to order a hearing, his decision will not be disturbed except on substantial grounds of error. Settlement upon land covered by a homestead entry confers no legal right so long as the entry remains uncanceled.

It is no valid objection to residence that it was maintained in the upper story of a building erected for purposes other than residence.

Acting Secretary Muldrow to Commissioner Sparks, May 27, 1885.

I have considered the case of Elias Turner v. Edward M. Robinson, involving the right to the NW. of the NE. 4, the E. of the NW. 1, and the NE. of the SW. of Sec. 28, T. 27 S., R. 23 E., Gainesville, Florida, as presented by the appeal of Turner from the decision of your office, dated August 9, 1884, dismissing his contest against Robinson's homestead entry, No. 11185, covering said tracts.

The record shows that Robinson made entry on January 2, 1883. On August 22, 1883, Turner initiated a contest against said entry on the ground of abandonment, and a hearing was duly held before the district land officers at Gainesville, Florida, on February 12, 1884, at which both parties appeared. The register and receiver, upon the evidence submitted, rendered their joint opinion that there was no evidence that Robinson had ever established a residence upon the land, and that said entry should be canceled.

On May 17, 1884, the register and receiver transmitted to your office all of the papers in the case with the statement that "an appeal has been filed which find enclosed."

The action of the local land officers was reversed by your office in said decision, upon the ground that the evidence clearly established the fact that Robinson commenced his residence within the six months required by law; that his temporary absences were satisfactorily explained, and that he intended in good faith to maintain his residence upon aud im