by letter of February 29, 1884, affirmed that decision and awarded the tracts to the company.

On appeal that decision was affirmed by this Department on August 19, 1886.

In said latter decision it was said:

But the land in this case being offered land and at the time of the hearing nearly four years having elapsed since the filing of the latest declaratory statement, and your office having found that the parties were duly cited, and had made default, I affirm the conclusion that they had abandoned the land prior to the date of selection by the railroad company and that Counterman's subsequent application was rightfully rejected.

On August 17, 1887, the withdrawal for said indemnity limits was revoked, and October 15, 1887, was fixed in the notice as the date when the lands thereby affected would be thrown open to entry.

On that day Counterman again applied to enter said land, the company was notified and February 13, 1888, set for hearing at which time. both parties appeared. Counterman submitted homestead proof and the company filed protest and cross examined the witnesses.

The proof showed that in March, 1884, claimant built a house on the tract and in 1885 broke five acres; that in the spring of 1886, he took up his residence there with his family and has since lived there; and that his improvements are valued at $620.

The local officers decided that the entry should be allowed on the ground that "the railroad selections had been forfeited." The company appealed.

On this appeal your office submitted the case as stated. Your said office letter states:

As to the jurisdiction of this office in the premises the case is res adjudicata, but since all the lands in the indemnity limits of the company, not included in an ap proved selection come within the terms of the withdrawal revocation dated August 17, 1887, it is respectfully submitted for re-adjudication.

The method of procedure to be followed in this class of cases is set out in said order of revocation of August 17, 1887*, as follows:

As to the lands covered by unapproved selections, application to make filings and entries thereon may be received, noted, and heid subject to the claim of the company, of which claim the applicant must be distinctly informed, and memoranda thereof entered upon his papers. Whenever such application to file or enter is presented, alleging upon sufficient prima facie showing that the land is from any cause not subject to the company's right of selection, notice thereof will be given to the proper representative of the company, which will be allowed thirty days after service of said notice within which to present objections to the allowance of such filing or entry. Should the company fail to respond or show cause before the local officers why the application should not be allowed, said application for filing or entry will be admitted and the selection held for cancellation; but should the company appear and show cause, an investigation will be ordered under the rules of practice to determine whether said land is subject to the right of the company to make selection of the same, which shall be determined by the register and receiver, subject to the right of appeal in either party.

*See Atlantic and Pacific R. R. Co., 6 L. D., 91.

When appeals are taken from the decision of the register and receiver to your office in the class of cases herein provided for, you will dispose of them without delay; and if the decision of your office shall be in favor of the company, and no appeal be taken, the land shall be approved or certified for patent, without requiring further action on the part of the company except the payment of fees and dues. If the decision of your office should be adverse to the company, and no appeal taken, the selection will be canceled, and the filing or entry allowed, subject to compliance with the law.

In this case your office has not followed the course prescribed by said instructions, in that the validity of the company's selection was not passed upon. The local officers held that "the railroad selections had been forfeited."

Said instructions, however, do not justify this conclusion. Your office has made no judgment on "the right of the company to make selection." This question should have been decided by your office.

The case is therefore returned for such disposition of said selection as may be proper in the light of the application of Counterman.

SECOND TIMBER CULTURE ENTRY-REPAYMENT.

JAMES C. KEEN.

A second timber culture entry may be allowed where the first, through no fault of the entryman, did not cover the land intended to be entered, and amendment is barred by the adverse claim of another.

Credit on the second entry, for fees and commissions paid on the first, can not be allowed, but repayment of such fees and commissions will be considered on application therefor.

First Assistant Secretary Muldrow to Commissioner Stockslager, February 21, 1889.

The record in this case shows that on July 6, 1886, James C. Keen made timber culture entry for the NW. of Sec. 22, T. 12 N., R. 32 W., North Platte land district, Nebraska.

On or about July 1, 1887, Keen filed in the local office an application, accompanied by his affidavit, duly corroborated, in effect asking that his said entry be canceled without prejudice to his right to make another timber culture entry for a different tract of land. He filed at the same time his written relinquishment of his original entry, and along with it, a formal application to make timber culture entry for the E. of the NW. and the W. of the NE. of Sec. 24, T. 15 N., R. 30 W.,

of the same series. The facts stated by Keen in support of his application are, substan tially, that on July 4, 1886, desiring to select a tract of land suitable for timber culture entry, he employed one Frank Gapen, who then had an office in North Platte, and represented himself to be a competent surveyor and locator, to show him a desirable tract for the purpose named. That Gapen took him to a tract of land, which at the time was devoid of improvements, and affiant being pleased therewith, and being

informed by said Gapen that the same was the NW. of Sec. 22, T. 12 N. R. 32, W., he made his application therefor, and upon this application his said original entry was allowed; that subsequently, about the 15th of September, 1886, affiant again went to the tract for the purpose of showing the same to his family and determining what portion thereof he would plow for the planting of trees, and found a settler thereon by the name of John Spies, who informed affiant that the tract in question was not the tract embraced in his said timber culture entry. He afterwards ascertained that the land he had thus selected and supposed he had entered, was the SE. of Sec. 26, T. 13 N., R. 32 W., and that the tract he had actually entered, as aforesaid, was entirely worthless, being situated on the sand hills, and for that reason utterly unfit for cultivation; that affiant, when he made the selection aforesaid, was entirely ignorant of the government surveys, but believed said Gapen to be a competent surveyor and locator, and relied upon him as such and as a man of honesty and fair dealing, incapable of deception in the matter of locating him on the tract in question. Affiant further states that he agreed to take the claim, in good faith believing it to have been properly described to him by Gapen, and that when he made his application to enter, he honestly believed he was applying for the identical tract he had thus examined; that he has caused the records of the land office at North Platte to be examined and finds that the SE. of Sec. 26, T. 13 N., R. 32 W., the tract on which he had been located, as the NW. of Sec. 22, T. 12 N., R. 32 W., as aforesaid, is embraced in the homestead entry of said John Spies, made March 22, 1886, several months prior to affiant's selection thereof. The affidavit of one A. J. Slootskey, dated May 12, 1887, is filed in the papers, in which Slootskey states, among other things, that he had recently had a conversation with Gapen, in which the latter admitted that at the time he located Mr. Keen on the tract above mentioned, he knew the same had been previously covered by the homestead entry of Spies.

Upon the showing thus made, your office treated the application of Keen as an application to amend his original entry, and, on October 4, 1887, rejected the same, for the reason that the land now sought to be entered was not intended to have been embraced in the applicant's orig inal entry.

The papers are now before me on Keen's appeal from your said decision.

This is not, as construed by your office, an application to amend an existing entry, but is an application by Keen to be allowed to make a timber culture entry, for another and different tract from that he originally intended to enter, on the ground of mistake in making his first entry, caused by the deception practiced upon him by the surveyor whom he employed to assist him in locating his claim, and upon whom he relied; it being shown that the tract he originally intended to enter was at the date of his examination and selection thereof covered by the homestead entry of another party.

Upon the showing made by Keen, I think his application should be allowed. Second timber culture entries have been allowed when, through no fault of the entryman, the first entry is incapable of being carried to patent. R. E. Gilfillan (6 L. D., 353). It has also been held that the same principle governs the allowance of a second timber culture entry as obtains in the case of a second homestead entry (A. J. Slootskey 6 L. D., 506, and cases there cited); and it has been substantially ruled that when entry is made for a tract of land not intended to be entered, and due care has been exercised by the entryman, an entry will be allowed for another and different tract. Henry E. Barnum (5 L. D., 583).

The applicant in the case at bar could not have carried his original entry to patent, for the good and sufficient reason that the land covered thereby is shown to be utterly unfit for purposes of cultivation, and he could not therefore have grown and cultivated thereon the trees required by the timber culture law. He could not have amended so as embrace the tract he originally intended to enter, for the reason that the same was covered by a prior adverse claim. So that, if his present application be disallowed, he will be virtually denied the privilege, through no fault or inexcusable negligence on his part, of the one entry allowed by the timber culture law. He appears to have acted, in all respects, in the best of faith, and the mistake which led to his original entry is, in my judgment, such a one as is liable to be made by a man exercising all reasonable care and prudence. There is no adverse claim to the tract he now seeks to enter and the matter is one solely between him and the government. You will, therefore, cancel his first entry on the relinquishment filed, and allow him to make new entry covering the tract applied for.

Your said office decision is accordingly reversed.

Keen, also, asks, that he be allowed credit in his new entry for fees and commissions heretofore paid by him. Such credit can not be so allowed. If he desires the repayment of fees and commissions paid on his first entry, he will be required to make separate application therefor, in accordance with the provisions of Department circular of December 1, 1883, (2 L. D, 660) when the matter will be duly considered.

CONTEST-SIMULTANEOUS APPLICATION-PRACTICE.

JASMER ET AL. v. MOLKA.

Where a few seconds intervene between two applications to contest an entry, the right of precedence is properly awarded to the one first actually received.

The defendant is the only person entitled to complain of irregularity in an application to contest which has been accepted.

First Assistant Secretary Muldrow to Commissioner Stockslager, February

21, 1889.

On June 8, 1885, Edward Molka made timber culture entry for the SE. of Sec. 4, T. 125 N., R. 64 W., Aberdeen, Dakota. On July 16181-VOL 8. -16

12, 1887, William Molka and Carl Jasmer each applied to contest the said entry. Both applications were based upon alleged failure by the entryman to comply with the law. The register accepted the contest of Molka. Upon appeal by Jasmer, your office, on October 4, 1887, sustained the action below. Jasmer appeals from this decision.

With the appeal the appellant submits the affidavits of himself, his attorney and one Heller, the witness of his affidavit of contest.

The facts in the case are set out in said affidavits and in the register's letter of August 19, 1887, transmitting the appeal from the action of the local office.

It appears from the foregoing that upon the opening of the local office on the morning of the said July 12, 1887, the said respective contests were presented within a few seconds of each other. The register states that there was a rush for the opening behind which he stood and that the contest of William Molka was first placed in his hands. Thereupon, the register, about ten minutes after the appellant's contest had been presented, accepted the contest of Molka (who applied to make homestead entry), "and allowed him to perfect his papers by taking the necessary oaths."

The appellant's affidavit of contest, with his application to make timber culture entry for the land, and accompanying affidavit, had been executed on said date, July 12, 1887, before a notary, prior to being presented at the local office.

The register further states that he reserved his decision from 9 A. M. until 1:30 P. M., "in order that he might see if his determination in the premises was in accordance with the observation of the employes in the office, and they were unanimous that precedence should be given to Molka."

On the said date, to wit: July 12, 1887, the register returned the appellant's contest papers, in compliance with his (appellant's) attorney's request not to enter said contest, unless it could be placed on the records of the local office prior "to any other contest."

The appellant submits four specifications of error, which set out substantially that your office erred in not suspending further proceedings in the matter of the contest of William Molka, in not holding said contests to be simultaneous, and in holding that the register could permit said Molka to "perfect his papers" after the presentation of the appel lant's application to contest.

In the case of Benschoter v. Williams (3 L. D., 419), it was held that where a few seconds intervened between two applications to contest an entry, the right of precedence was properly awarded to the one first actually received. This ruling was followed in the case of Jacobs r. Champlin (4 L. D., 318), and is now fully settled. The application of Molka in this case was first presented and accepted by the register.

The application having been accepted, the only person competent to complain of irregularity in the same was the contestee. This ruling is