the receiver of said land office not to pay any of the money heretofore deposited by the contestant to pay the cost of taking any deposition or depositions in behalf of the defendant.

Thereupon the local officers dismissed the contest, from which action Mendenhall, on August 14, 1899, appealed to your office, where, on December 2, 1899, the action of said officers was affirmed. hall has appealed to the Department.

Menden

The second section of the act of May 14, 1880, is as follows:

In all cases where any person has contested, paid the land office fees, and procured the cancellation of any preemption, homestead or timber-culture entry, he shall be allowed thirty days from date of notice to enter said land.

Rule 54 of practice reads thus:

Parties contesting preemption, homestead, or timber-culture entries and claiming preference rights of entry under the second section of the act of May 14, 1880 (21 Stat., 140), must pay the costs of contest.

The fact that Mendenhall's contest is under the second section of the act of May 14, 1880, leaves no question as to his liability for the costs of contest, and the fact that Cagle's testimony was taken by deposition does not relieve Mendenhall of the liability, as that is merely one of the modes prescribed by the rules of practice for securing evidence.

The decision of your office, sustaining the action of the local officers in dismissing Mendenhall's contest, is hereby affirmed, and the case closed.

TIMBER LAND APPLICATION-NOTICE-FINAL PROOF-PRACTICE.

BARTLETT. SMITH.

Under the provisions of rule 1 of the rules relating to final proofs, approved July 17, 1889, a timber land applicant may, on account of accident or unavoidable delay, be allowed ten days after the date named in the published notice, for the submission of final proof, within which to make such proof and payment.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) May 19, 1900. (L. L.B.)

January 4, 1899, Elijah Bartlett made timber land application for the NW. of Sec. 26, T. 21 N., R. 8 E., Seattle, Washington, and advertised that he would submit his final proof March 30, 1899. In his published notice he misdescribed the name of one of his witnesses, and for that reason he readvertised his notice, fixing the date for submitting his proof on July 7, 1899. On said last named date he appeared, and was allowed ten days within which to complete proof and payment. Eight days later, to wit, July 15 (not 10), 1899, he made

payment and received final cash certificate. He also submitted an affidavit of non-alienation, in which he stated that he was disappointed in getting the necessary amount of money for payment of the land on the day fixed for final proof "notwithstanding that affiant had long prior thereto arranged to have the amount for that purpose, but was wholly unable to get it before this date." In the meantime, on July 10, after the day fixed in the notice for submitting final proof, and before Bartlett had made payment for the land and so completed his proof, Albert Smith presented his sworn statement, and applied for the same tract of land under the timber and stone act. His application was rejected, because of the pending claim of Bartlett, as above set out. Smith appealed, and by your office decision of October 20, 1899, the action of the local officers was approved, and Smith now has further prosecuted his appeal to this Department.

Counsel for appellant complains, in substance, that it was error to allow Bartlett ten days after the date fixed in the notice in which to submit final proof and make payment for the land; that if payment and proof are not made on the day named in the published notice, the land is subject to entry by a stranger to the record; that his client, Smith, having tendered an application properly verified after the day set for proof and payment by Bartlett, and before Bartlett had tendered such proof and payment, his application should have been accepted, and it was error to reject it and issue certificate to Bartlett upon payment thereafter and within ten days after the day fixed in the notice.

To sustain his contention counsel for Smith cites and relies upon the cases of J. M. McDonald (20 L. D., 559); Caleb J. Shearer (21 L. D., 492); and James N. True (26 L. D., 529).

By circular of your office, approved by Secretary Noble, July 17, 1889 (9 L. D., 123), rules were established for taking final proofs "in all cases where the same were required by the general land laws or regulations of the Department.”

Rule 1 is as follows:

1. Final proofs in all cases where the same are required by the general land laws or regulations of the Department, must be taken in accordance with the published notice; provided, however, that such testimony may be taken within ten days following the time advertised in cases where accident or unavoidable delays have prevented the applicant or his witnesses from making such proof on the day specified. Section 7 of the act of March 2, 1889 (25 Statutes, 854).

That final proof is required before patent shall issue upon a timber land entry does not admit of doubt. The statute itself provides that before the entry is allowed or patent issued, the applicant shall furnish to the register of the land office satisfactory proof of the publication of his notice; the character of the land (chiefly valuable for timber, unoccupied, &c.); and that it contains no valuable deposits of certain specified minerals. (20 Stat., 89-90.) The rules above quoted,

therefore, have application to timber land entries, in common with homestead, etc.

The cases relied upon by counsel for Smith all have reference to republication of notice, and in none of them is it held that an adverse right, asserted after publication and within the ten days thereafter allowed for proof and payment, will defeat the claim of the original applicant. Bartlett has shown that by "unavoidable delay" he was unable to make payment on the day fixed in his notice, and within ten days thereafter he submitted proof and payment. He is directly within the regulations of July 17, 1889, above quoted.

The decision appealed from is affirmed, and the entry of Bartlett will stand intact.

ACT OF JUNE 4, 1897-APPLICATION TO SELECT-FOREST RESERVE.

EDGAR A. COFFIN.

An application to select lands under the act of June 4, 1897, must be rejected where the lands offered as a basis for such selection are in any manner encumbered, so that the United States can not, by the acceptance of a relinquishment of the lands offered, be reinvested with all the right and title with which it had previously parted.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) May 19, 1900.. (E. B., Jr.)

Your office decision of April 10, 1900, rejects the application of Edgar A. Coffin made October 21, 1899, to select, under the act of June 4, 1897 (30 Stat., 11, 36), lot 3 section 1, lot 3 section 2, NE of the SE section 12 and SE of the NE section 18, T. 61 N., R. 23 W., Duluth, Minnesota, land district, in lieu of the SW of section 24, T. 20 N., R. 7 E., G. and S. R. M., Arizona, on the ground that the land offered as a basis for such selection is subject to the grant, made by one James W. Thurber remote grantor of the applicant, of a right of way across and upon the same, which right is an encumbrance thereon, and therefore renders the land unacceptable as such basis under the said act. Coffin has appealed from said decision, contending that your office erred in rejecting the said application on the ground stated.

The land offered as a basis for the lieu selection is surrounded by the San Francisco Mountains Forest Reserves and was patented to said Thurber June 7, 1892. By deed dated July 7, 1895, said Thurber and his wife granted

A permanent right to appurtenant easement and right of way for any and all uses and purposes in timber and lumber operations including logging roads and railroads over, across and upon any and all of the following lands, to wit: The south-west quarter of section twenty-four, in township twenty, north range seven east of Gila and Salt River Meridian, in Coconino County, Arizona Territory. To have and to hold the same and use the above described easement and right of way together with

and singular the rights and appurtenances thereto and in any wise belonging unto the said Arizona Lumber and Timber Company, its successors and assigns forever.

It does not appear that the easement and right of way granted in said deed has ever been released or otherwise extinguished.

In the case of F. A. Hyde et al. (28 L. D., 284) construing the provision of the act of June 4, 1897, supra, providing for an exchange of lands, and under which Coffin's application is made, it was held

that

Before a selection under said act can be approved, the United States must be reinvested with all the right and title to the tract relinquished, with which it had previously parted.

And in official regulations of May 9, 1899 (28 L. D., 521, 523), and December 18, 1899 (29 L. D., 391, 394), after repeating the above holding in the case of Hyde et al., it is said that where, as is the case here, the legal title to the land offered as a basis for the selection has passed out of the United States

there must also be filed with the relinquishment a duly certified abstract of title showing that at the time the relinquishment was filed for record the legal title was in the party making the relinquishment and that the land was free from liability for taxes and from other incumbrance.

The easement and right of way granted by the said deed is, until duly released or otherwise extinguished, a permanent charge upon the land in the nature of a freehold estate which passes with the fee to the land itself. No such easement and right of way was chargeable upon the land under the patent to Thurber. The United States would not receive back again upon acceptance of the deed from Coffin all the right and title to the land, with which it had previously parted. That such an easement and right of way is an incumbrance upon the land see McGowen . Myers (60 Iowa, 256) and other cases cited in note on page 839, Vol. 19 Am. and Eng. Encyc. of Law.

The decision of your office rejecting Coffin's application is correct, and is affirmed accordingly.

RAILROAD SELECTION-ACT OF JULY 1, 1898.

NORTHERN PACIFIC RY. Co. v. KORSMOE.

An attempted selection, subsequent to January 1, 1898, does not present a claim for adjustment under the act of July 1, 1898, for the reason that by the terms of said act the claims of the company are limited to those which are claimed to have attached by definite location or selection prior to January 1, 1898.

Acting Secretary Ryan to the Commissioner of the General Land Office. (W. V. D.) May 22, 1900. (F. W. C.)

With your office letter of April 7, last, was transmitted an application, filed on behalf of the Northern Pacific Railway Company, invok

ing the exercise of the supervisory authority of this Department and asking for the issue of a writ of certiorari, under rules 83 and 84 of practice, directing your office to forward the papers in the case of the Northern Pacific Railway Company . Gustav G. Korsmoe, involving the SE. of Sec. 33, T. 135 N., R. 43 W., St. Cloud land district, Minnesota, for consideration and adjudication.

This same tract was involved in the case of Gustav G. Korsmoe v. Per Nilson, which was considered in departmental decision of November 19, 1898 (not reported), in which Korsmoe was awarded the right to make entry of the land. From the recitation made in said case it appears that this tract is within the indemnity limits of the grant made by the act of July 2, 1864 (13 Stat. 365), to aid in the construction of the Northern Pacific railroad, and was included in the list of selections tendered on July 8, 1885, and rejected for conflict with a listing made of the same lands on account of the grant for the St. Paul, Minneapolis and Manitoba Railway Company. From said rejection the Northern Pacific Railroad Company duly appealed. Said appeal was pending, undisposed of, on February 18, 1895, when Korsmoe tendered his homestead application for this land, alleging settlement in 1880. April 11, 1895, Per Nilson also tendered his homestead application for this land.

The respective claims of Korsmoe and Nilson and the Northern Pacific Railroad Company to this land were considered in your office decision of October 14, 1896, in which the action of the local officers in rejecting the attempted selection made by the Northern Pacific Railroad Company was affirmed and from such action said company failed to appeal. As between Korsmoe and Nilson the right of entry was awarded in your office decision to Nilson, and it was upon the appeal by Korsmoe that the departmental decision of November 19, 1898, before referred to, was rendered, in which your office decision of October 14, 1896, as between Korsmoe and Nilson, was reversed and Korsmoe was awarded the right to make entry of the land. In said departmental decision of November 19, 1898, any claim of the company to this land by reason of the selection made thereof was not considered, for the reason that the company had abandoned its claim under its attempted selection of this land by failure to appeal from your office decision affirming the action of the local office in rejecting the same.

It now appears that on June 6, 1899, Korsmoe made homestead entry of this land and, after due notice by publication, made final proof and final certificate issued thereon August 3, 1899.

On June 7, 1899, the Northern Pacific Railway Company again applied to select this land, which application was rejected by the local officers for conflict with the homestead entry made the day previous by Korsmoe. From said rejection the company appealed.

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