This proceeding instituted by Patterson for the purpose of obtaining proper recognition of her pre-emption claim by the land officers, is one in which the claimant under the canal selection is so directly interested and the result of which will be so nearly identical with that which would follow the regular submission of final proof upon her claim, that the statute, published regulations and practice respecting the giving of notice of the intended submission of final proof should be held applicable, as far as may be, to the present proceeding. Tested by this rule the notice given was sufficient. That it conformed to the act of March 3, 1879, supra, and the published regulations of April 15, 1879 (6 Copp's Land Owner, 45), governing the notice of the intended submission of final proof upon pre-emption and homestead claims is not questioned; but it is insisted that the original canal company and its transferees should have been, but were not, specially notified and therefore the proceeding was without due notice.

By way of supplementing the notice deemed adequate by Congress in instances of the intended submission of final proof upon preemption and homestead claims, a practice has grown up of giving special notice to all adverse claimants shown by the records of the local office, but the manner of giving this special notice has not been uniform or well defined. At one time it was by addressing the posted and published general notice to the adverse claimant by name, “and to whom it may concern," by a line at the top of the notice (see 3 L. D., 112, 196); but this was subsequently disapproved (Reno ». Cole, 15 L. D., 174; Andrew Davis, 18 L. D., 525), and it was said that the special notice should be personal, or by registered letter, or by unreg istered letter the receipt of which is shown or acknowledged. This practice, while not indispensable to due process or to due notice, was adopted as a matter of precaution and clearly serves a useful purpose. But lest it should embarrass rather than assist the land officers in the due and orderly administration of the public land laws the practice has been extended only to adverse claimants shown upon the records of the local office, that is, the original record claimant and transferees who have placed in the local office a statement of their interest. The purpose of this precautionary notice is to bring to the special attention of adverse record claimants the fact, brought to the general attention of the public through the posted and published notice, that a designated claimant is taking the steps necessary to perfect title to the land and that adverse claimants will be given opportunity at a stated time to be heard in opposition thereto and in support of their own claims. The accomplishment of this purpose, rather than the manner in which it is accomplished, is the matter most to be considered, and where it appears that this purpose has been fully accomplished the particular manner in which it was done becomes immaterial. Its efficiency is demonstrated.

At the time when this hearing was ordered the claimant under the canal selection, shown by the records of the local office, was no longer in existence. By change of name it had become the Lake Superior Ship Canal, Railroad and Iron Company in 1871, and by the sale of its lands, property, and corporate rights and franchises in 1877, under foreclosure proceedings, it had become extinct. Thereafter it had no interest in the land or in any controversy respecting it, and had no corporate existence, so that special notice to it was neither desirable nor possible.

The Lake Superior Ship Canal, Railway and Iron Company, the transferee, through such foreclosure proceedings, takes the position that while it has not filed in the local office any statement of its interest so as to make it a record claimant, it should, nevertheless, have been specially notified, because, as is claimed, the local officers were familiar with the then recent decision of the supreme court in the case of Lake Superior Ship Canal, Railway and Iron Company . Cunningham, and knew of the interest of that company. If this position be conceded the result is not altered. When, soon after the filing of Patterson's affidavit, the local officers informed counsel for this company of the pending case and the date of the hearing, and permitted him to take copies of Patterson's affidavit and of the notice of hearing issued thereon, the company was specially notified, unless counsel was not authorized to act for the company in such matters and did not bring to the company's attention the information so entrusted to him in its behalf; and when, at the time and place named in the notice, the company appeared and objected to the hearing upon the grounds herein stated, it thereby made known that the purpose of the precautionary notice was accomplished, viz., that the company knew of the proceeding, understood its character, and was informed of its opportunity to be heard.

The records of the local office did not disclose that the Metropolitan Lumber Company or the Keweenaw Association, Limited, had any interest in the land in controversy and therefore they were not within the rule respecting precautionary or special notice. They were charged with knowledge of the invalidity of the selection of the land under the canal grant, of the terms of the act of March 2, 1889, and of the claim of Patterson evidenced by her possession of the land; and in all probability they had actual knowledge of the decision of the supreme court in the case of Lake Superior Ship Canal, Railway and Iron Company . Cunningham. They were also notified by the terms of the contract and deed under which they respectively claim that there was a controversy as to the title to the land and that it was probably claimed under the pre-emption or homestead laws. Under these circumstances they could have anticipated the assertion of Patterson's claim before the local land office and have brought themselves

within the rule respecting special notice by filing in that office a statement of their interests and a request that they be specially notified of any proceeding affecting the land. Not having done this they are bound by the posted and published notice, and are as effectually concluded by the facts proven at the hearing as though they had been present and had participated therein.

It is also urged that the hearing was ordered by the local officers instead of by the Commissioner of the General Land Office; that notice was given by publication without any showing that due diligence had been used and personal service could not be made; and that, therefore, the proceeding was not initiated in conformity to rules of practice, 5 to 16 inclusive. These rules (see 4 L. D., 35; 23 Id., 593; 29 Id., 726) relate to purely adversary proceedings brought against a particular claimant to secure the cancellation of an existing claim of record, prima facie valid, and amounting to an appropriation of the land. They provide for personal service of notice of the contest, unless it is shown that due diligence has been used and personal service can not be made, in which event publication is authorized. They also direct that the hearing shall be ordered by the Commissioner of the General Land Office where the claim sought to be canceled has passed to final entry or its equivalent. But these rules do not apply to final proof proceedings or others of essentially the same nature. The proceeding instituted by Patterson was not originally an adversary one brought against any particular claimant or claim. The invalidity of the original canal selection was apparent on the records of the local office, and nothing was there shown indicating that its confirmation under the act of March 2, 1889, had been established or was recognized by the land officers. Patterson was not asking its cancellation, but was seeking to establish and perfect title to the land under her pre-emption claim alleged to have been confirmed by Congress. This was in the nature of a final proof proceeding, and not a contest under the rules of practice.

That the rules of practice cited (5–16) have not been understood to be applicable to proceedings like this is shown by the regulations issued December 30, 1889 (13 L. D., 423), to carry into effect the provisions of the act of March 2, 1889, respecting the confirmation of cash entries. These regulations directed the local officers, upon the filing of an application to establish and perfect title under a cash entry, to order a hearing thereon and give notice thereof by publication. This was in harmony with the established procedure for the submission of final proof upon pre-emption and homestead claims.

The act did not prescribe the procedure to be followed in carrying out its provisions respecting the confirmation of pre-emption and homestead claims to lands which were also covered by invalid selections under the canal grant, nor were any regulations ever issued for

that purpose. In this situation the local officers followed, as most applicable, the regulations governing the submission of final proof upon pre-emption and homestead claims and those issued for the purpose of carrying into effect the provisions of that act confirming cash entries. This procedure was appropriate and is approved.

EFFECT OF PENDING SUIT.

One contention of the canal company is that during the pendency of the existing suit in the circuit court of the United States for the western district of Michigan the land department is without authority to proceed in this case, and, even if there is not a want of authority, comity between co-ordinate jurisdictions requires that the land department should decline to proceed until the court has passed upon the case before it.

Because of the executive character of the land department and of what is hereinbefore said respecting its authority in administering public land laws, it is believed that the court and the land department are not tribunals of concurrent or co-ordinate jurisdiction, but, if they were, there was not, at the time of the hearing in the local office, that identity of subject and of parties in the suit in court and in the proceeding in the land department which is essential to the application of the general principle, in respect of courts of concurrent or co-ordinate jurisdiction, that whichever first obtains jurisdiction of the subject and parties will retain it to the end. The purpose of the suit, with respect to the land here in controversy, was not to determine whether on May 1, 1888, Patterson had a bona fide pre-emption claim on the land arising or asserted under color of the laws of the United States, but was to prevent the cutting and wasting of timber growing or found upon the land until the state of things existing on May 1, 1888, and Patterson's rights could be ascertained and determined by competent authority. Patterson was not a party to this suit when, on January 7, 1895, she invoked the authority of the land department, nor was any attempt made to make her a party until after she had obtained a favorable decision by the local office upon her claim and an appeal had been taken therefrom to the Commissioner of the General Land Office. She was an indispensable party to any suit the purpose of which was to determine whether, on May 1, 1888, she had a bona fide preemption claim on the land in controversy within the meaning of the act of March 2, 1889 (Litchfield . Register and Receiver, supra), and so far as she and her claim are concerned, the pending suit had no status, and was the same as if not brought, until she was made a party thereto. Before this was done the land department had obtained full jurisdiction of the subject and all parties in interest, and, according to the rule invoked by the canal company, was entitled to retain that

jurisdiction until a final decision should be given, and this to the exclusion of all other tribunals of concurrent or co-ordinate jurisdiction.

Nor is this an instance where the land department for its own guidance, or for the mutual benefit of parties in interest should, as a matter of proper precaution or wise administration, suspend proceedings pending before it until a judicial decision is obtained upon the questions presented. The decision of the supreme court in the test case of Lake Superior Ship Canal, Railway and Iron Company v. Cunningham so completely construes the act of March 2, 1889, and sets forth the respective rights of the canal company and pre-emption and homestead claimants under the confirmation thereby given, and the decision of that court in Litchfield v. Register and Receiver, Catholic Bishop of Nesqually . Gibbon, and Brown v. Hitchcock, so clearly mark the boundaries of departmental and judicial jurisdiction respecting the administration and execution of public land laws that the questions here presented can not be said to be new or open to discussion. These decisions if followed will guide the land department to a correct decision of the pending and similar cases, and when this can be done the parties in interest will be mutually benefited if a decision is given without more delay than is made necessary by the state of the public business before the Department and such careful examination as is indispensable to an ascertainment of the facts in each case and the application to them of the principles announced in the decisions named. The facts affecting this branch of the case are as follows: Patterson claims to have in good faith effected a settlement upon the land in controversy before May 1, 1888, with the intention of perfecting title thereto by compliance with the pre-emption law, and to have since then continuously maintained the same in good faith; the act of confirmation was passed March 2, 1889; May 1, 1889, Patterson tendered a pre-emption declaratory statement for the land at the local office which was rejected by the local officers and by the Commissioner of the General Land Office and the Secretary of the Interior, on successive appeals, upon the erroneous theory that the outstanding selection and certification under the canal grant was an effective obstacle to departmental action until it should be canceled in a judicial proceeding in the courts; December 10, 1894, the supreme court in the test case against Cunningham declared such selection and certification absolutely void and announced the rule to be applied in determining the respective rights of the canal company and pre-emption and homestead claimants under the act of March 2, 1889; on January 7, 1895, almost immediately after this decision, Patterson reasserted her claim before the local office, and after due notice and a fair hearing, the inconvenience and expense of which to her was necessarily considerable, obtained a decision by the local officers sustaining her claim, and since then her claim has been further sustained by the Commissioner of the General Land Office