the new measurement has to the length of chain used in the original survey, assuming that the original and new measurements have been correctly made.

For example: The length of the line from the quarter-section corner on the west side of sec. 2, T. 24 N., R. 14 E, Wisconsin, to the north line of the township, by the United States deputy surveyor's chain, was reported as 45.40 chains, and by the county surveyor's measure is reported as 42.90 chains; then the distance which the quarter-quarter section corner should be located north of the quarter-section corner would be determined as follows:

As 45.40 chains, the Government measure of the whole distance, is to 42.90 chains, the county surveyor's measure of the same distance, so is 20.00 chains, original measurement, to 18.90 chains by the county surveyor's measure, showing that by proportionate measurement in this case the quarter-quarter section corner should be set at 18.90 chains north of the quarter-section corner, instead of 20.00 chains north of such corner, as represented on the official plat. In this manner the discrepancies between original and new measurements are equitably distributed.

PRACTICE-REVIEW-SECOND CONTEST-EVIDENCE.

STATE OF CALIFORNIA . REEVES (ON REVIEW).

A contest allowed during the pendency, on appeal, of a prior suit involving the same land is without jurisdiction; and the evidence submitted therein cannot be considered in support of a motion for review of the decision rendered in the prior

case.

Acting Secretary Reynolds to the Commissioner of the General Land Office,

Your office letter of May 25, 1896, transmits a motion for review of departmental decision in the above entitled cause, rendered February 17, 1896 (22 L. D., 203). The land involved is the NE. 4 of the NE. † and the SE. of the NE. 4 of Sec. 18, T. 5 N., R. 10 W., S. B. M., Los Angeles, California. This motion is filed by one II. W. Duncan, who signs himself as attorney for the State of California.

In this motion it is admitted that there were no errors of law in the departmental decision referred to, but the motion is based upon the testimony alleged to have been taken in a contest case entitled Peter

B. Mathiason v. Harlan B. Sweet, assignee of Albert F. Reeves. As this contest involved the land in controversy between the State of California and Reeves, and the latter case was pending in this Department at the time said contest hearing was held, to wit, January 14, 1896, said hearing was irregular, erroneously allowed, and was without jurisdiction.

The mover of the motion under consideration files with his motion what he swears is a correct copy of the testimony taken at the hearing in the contest case referred to, but in view of the fact that said contest proceedings were illegal, the fact that the alleged copy is not certified and the testimony not sworn to is immaterial.

The motion is denied.

TIMBER CULTURE CONTEST-NOTICE OF CANCELLATION-APPLICATION.

WHITE v. LINNEMANN.

One who files an affidavit of contest against a timber culture entry, pending the disposition of a prior suit against the same entry, is not entitled to notice of cancellation if the entry is canceled under the prior proceedings; nor will an application to enter filed with the subsequent contest secure any right to the applicant if the successful contestant fails to exercise his preferred right.

Secretary Francis to the Commissioner of the General Land Office, October 16, 1896. (P. J. C.)

The land involved in this appeal is the SE. of Sec. 14, T. 22, R. 54, Alliance, Nebraska, land district.

The history of this tract as I glean it from the record is that on September 25, 1885, one David Freedom made timber culture entry of it; that on September 27, 1890, the same was canceled as the result of a contest initiated by one David T. Cummins; that subsequent to the initiation of this contest, and on September 27, 1889, one H. Paddock also filed a contest subject to that of Cummins; that on November 20, 1889, the plaintiff herein, Isaac White, filed a third contest, which was endorsed, "Filed Nov. 20, 1889,-9:15 A. M.-subject to Cummins and Paddock v. Freedom." Below this endorsement and apparently put there at a later period is this, "Entry canceled by first contest." White presented an application to make timber culture entry of the tract September 3, 1890. This application is endorsed, "Fees tendered and returned; application received and filed September 2, '90, and filed with his application to contest." On October 20, 1890, Tongers H. Linnemann made timber culture entry of the tract.

On June 9, 1891, White presented at the local office an affidavit showing his qualifications to perfect his entry; also that Cummins did not avail himself of his preference right under his contest; that he had not received notice from the local office of the cancellation of

Freedom's entry, and was not aware of it until informed by his attorney, who discovered the fact by an examination of the record. With this affidavit he again tendered the required fees. The local office rejected this tender of his fees, and his application to enter, for the reasons, (1) that the cancellation of Freedom's entry was not the result of White's contest; (2) that he did not deposit the one dollar "for notice of cancellation;" (3) that his application to enter was not filed with his contest, but ten months thereafter; (4) that the application. conflicts with the entry of Linnemann, and (5) that the timber culture law has been repealed.

White appealed, and your office, by letter of October 14, 1891, held that it was error not to have notified White of the cancellation of Freedom's entry, and ordered that Linnemann be allowed sixty days in which to show cause why his entry should not be canceled and White's entry placed of record.

A hearing was thereupon had before the local officers, and as a result they decided in favor of Linnemann. White appealed, and your office, by letter of October 5, 1892, reversed their action, and held defendant's entry for cancellation, and that plaintiff be allowed to make his timber culture entry, whereupon Linnemann prosecutes this appeal.

There are several specifications of error, but they may be condensed into one proposition, that is, can a third contestant, whose application to enter the land involved did not accompany his contest, but was presented and filed with the contest before the cancellation of the entry and before the repeal of the timber culture law, have such an accruing right in the land as will entitle him to perfect the entry so tendered, when the prior contestants fail to exercise their preference rights?

Cummins did not exercise his preference right. It will be observed that before the expiration of the thirty days in which Cummins might have entered the land the defendant's entry was allowed.

It has been frequently decided by the Department that a preference right does not accrue to a second or third contestant where the entry in question is canceled as the result of the first contest. (Armenag Simonian, 13 L. D., 696; Edwin M. Wardell, 15 L. D., 375; Adamson v. Blackmore, 16 L. D., 111; Owens v. Gauger, 18 L. D., 6.) No preference right having accrued to White, he was therefore not entitled to notice. of cancellation of Freedom's entry.

White could gain no advantage or right by his application to enter, because at that time the land was segregated by a prior subsisting entry. The rejection, therefore, of his application was not erroneous. (Goodale v. Olney, 13 L. D., 498; Maggie Laird, 13 L. D., 502.)

Your office decision seems to have been based largely on the case of Heilman v. Syverson (15 L. D., 184). That case has recently been overruled. Shea v. Williams (23 L. D., 119). In that case it was held that:

It is a fundamental principle that rights secured by an application filed with a timber culture contest, depend upon the establishment of the charge, and if the con

test fails the application falls with it. It is also well established that the second contestant does not secure any preference right by reason of his contest, where the entry under attack is canceled in the prior contest of another. Armenag Simonian (13 L. D., 696).

Your office judgment is therefore reversed, and the entry of Linnemann will remain intact.

RAILROAD GRANT-INDEMNITY SELECTION-SPECIFICATION OF LOSS.

NORTHERN PACIFIC R. R. Co. v. DREW.

In the case of an indemnity selection list where the losses are not arranged tract for tract, and a tract is included therein that is in fact not lost to the grant, any applicant for a tract embraced within said list is entitled to claim that the failure in the loss assigned relates to his tract.

Secretary Francis to the Commissioner of the General Land Office, October

On November 1, 1887, L. B. Drew was permitted to make homestead entry for the SW. 4 of Sec. 29, T. 55 N., R. 21 W., Duluth land district, Minnesota. This tract is within the second indemnity belt of the grant to the Northern Pacific Railroad Company. The company's right under its selections covering said SW. of Sec. 29 was considered in departmental decision of March 11, 1896 (not reported), in which your office decision of January 7, 1895, adverse to the company, was affirmed. The company filed a motion for review of said decision, as to the S. of the SW. of said Sec. 29, which motion was duly entertained and returned for service. It has since been returned bearing evidence of service upon Drew.

It appears that the company first made selection of the S. of the SW. A in its list of April 23, 1883. This list contained a designation of losses equal in amount to the selected land, but the same were not arranged tract for tract with the selections. A re-arranged list was filed June 19, 1891.

In the previous decision of this Department your office decision was affirmed, upon the ground, as reported in your office decision, that there was a variance between the lists of 1883 and 1891 in the matter of the losses assigned as bases for said selections. The ground upon which the motion rests is that there was no variance between the lists of 1883 and 1891.

An answer to the motion has been filed on behalf of Drew, in which attention is called to the fact that in the list of 1883 the company specified as lost to the grant, and as a part of the bases on which said selection list rested, the S. of the SE. said tract does not appear among the June 19, 1891, but the S. of the SW. 28, is found designated as a basis, said last mentioned tract not being included in the list of 1883.

of Sec. 25, T. 137, R. 28; that losses contained in the list of of said section 25, T. 137, R.

Upon inquiry at your office I learn that the S. of the SE. of said Sec. 25 was not lost to the grant, the records showing that the company received patent therefor. It was presumably a clerical mistake in describing the S. of the SE. instead of the S. of the SW. of said Sec. 25, which last mentioned tract was lost to the grant by reason of the location of agricultural college scrip on October 10, 1867.

Within the second indemnity belt only certain losses will support a selection, namely, losses after the date of the passage of the act of July 2, 1864, and of land within the State in which the selection is made which cannot be satisfied from lands within the first indemnity belt.

It is clear, therefore, that the list of 1883 was unsupported as to eighty acres, that is, the bases stated in the list were eighty acres short of the amount selected. This circumstance evidences clearly the necessity of requiring the losses to be arranged tract for tract with the selected lands, for had this been done in the original list it would have been readily ascertained which of the tracts selected was based upon this alleged loss that did not exist.

By failing to arrange the losses tract for tract with the selections, it was within the power of any one attacking any part of the selection list to claim that the failure in the loss assigned related to his tract. Drew has called attention to the matter, and in my opinion is clearly entitled to claim that the loss wrongly assigned applied to his tract.

The previous decision of this Department, recognizing Drew's entry as against the company's selection, is, for the reasons herein before given, adhered to, and the motion for review is accordingly denied.

GRANDIN ET AL. v. LA BAR.

Motion for review of departmental decision of August 29, 1896, 23 L. D., 301, denied by Secretary Francis, October 16, 1896.

RAILROAD GRANT-LANDS EXCEPTED-ADDITIONAL HOMESTEAD.

NORTHERN PACIFIC R. R. Co. v. WALLACE.

The occupancy of a tract in connection with land covered by an original homestead entry, with a view to establishing a claim thereto as an additional homestead, excepts the tract so occupied from the operation of a railroad grant on definite location.

Secretary Francis to the Commissioner of the General Land Office, October (W. A. L.) 16, 1896. (C. J. W.)

On November 17, 1873, Robert Wallace made homestead entry, No. 232, for the W. NE. 1, Sec. 34, T. 18 N., R. 18 E., North Yakima, Washington, upon which final proof was submitted February 17, 1881, alleging settlement November 17, 1873, and establishment of residence