PRACTICE NOTICE BY PUBLICATION-MOTION TO DISMISS.

POPP v. DOTY.

Service of notice by publication is defective, if a copy of the notice is not mailed by egistered letter to the defendant at his post-office of record.

On objection to the service of notice the contest should be dismissed, if the ground of objection is well taken, and the contestant does not, at such time, apply for an alias notice.

Secretary Bliss to the Commissioner of the General Land Office, April 29, Secretary Bliss to the Comm (W. V. D.)

1897.

(C. W. P.)

This case involves the SE. of the SW. of Sec. 21, and the N. of of the SW. of Sec. 28, T. 13, R. 5 E., Oklahoma land district, Okla homa Territory.

On October 27, 1891, Samuel A. Doty made homestead entry No. 2011 of said land.

On October 2, 1893, Fred Popp filed affidavit of contest, charging abandonment. Notice was issued for a hearing on September 26, 1894, and on affidavit of Popp, that he was unable to find the defendant, service of notice was directed to be given by publication. At the hearing the defendant appeared by his attorney specially, and moved that the contest be dismissed on the ground that no proper notice of coutest had ever been served upon him. Said motion was overruled, and the contestant called as a witness in his own behalf. The attorney for the defendant objected to the taking of any testimony and refused to continue in attendance.

On February 2, 1895, the local officers decided in favor of contestant, and, upon appeal, your office, on October 2, 1895, remanded the case to the local office for further hearing, on the ground that the notice of contest was defective. Popp appeals to the Department.

The record shows that the name of Doty's post office of record was changed from "Four Mile" to "Miami," Indian Territory; and that due publication of the notice was made.

Popp's attorney made affidavit that he presented a letter addressed to Doty at "Four Mile", Indian Territory, to the postmaster at Oklahoma City, and requested him to register same, but that the postmaster returned said letter, for the reason that there was no such post office. On the other hand, R. A. Davis, registering clerk at Oklahoma City post office, made affidavit that he never refused said letter, and if such a letter had been presented he would have accepted and registered the same, or given information as to the proper place to send it.

Popp, in his appeal, excepts to the consideration of the latter affidavit, on the ground that he was not served with a copy. But it appears to have been filed in the local office long before the decision was rendered by the register and receiver, and the objection applies equally to the affidavit of Popp's attorney, which does not appear to have been served on Doty or his attorney.

Independently of these affidavits, it appearing that a copy of the notice was not mailed to Popp by registered letter at his post office of record, as required by Rule 14 of Practice, the motion of the defendant. should have been granted and the contest dismissed. In order to gain jurisdiction of the parties where notice is served by publication, it is necessary to follow strictly the requirement of the rule.

Upon the presentation of the motion to dismiss, if Popp had applied for an alias notice, the same would have been granted; but he elected to stand upon the sufficiency of the notice, and it being fatally defective, no jurisdiction thereunder was acquired by the local officers. Under the circumstances, the contest must fall.

Your office decision is accordingly modified, and the contest dismissed.

HOMESTEAD COMMUTATION—ACT OF JUNE 3, 1896.
ANDERS G. HASSELQUIST.

An order directing the cancellation of a prematurely commuted homestead entry will not defeat action under the confirmatory provisions of the act of June 3, 1896, if such order has not become final.

Secretary Bliss to the Commissioner of the General Land Office, April 29, (W. V. D.)

1897.

(W. C. P.)

Anders G. Hasselquist has filed an appeal from your office decision of December 17, 1895, holding for cancellation his commutation cash entry for the SE. 1 of Sec. 26, T. 37 N., R. 8 E., Wausau, Wisconsin land district.

Hasselquist made homestead entry for this land on June 20, 1891, alleging settlement December 20, 1890, and was allowed to commute said entry to cash entry on August 28, 1891, the final proof showing residence on the land from December 29, 1890. Your office by decision of February 21, 1893, held that inasmuch as the original entry was made after the passage of the act of March 3, 1891 (26 Stat., 1095), the claimant must show residence and cultivation for a period of fourteen months to entitle him to commute the same. Upon appeal to this Department that decision was affirmed August 20, 1895. No motion for review of that decision having been filed, your office, by letter of December 17, 1895, held said entry for cancellation, and directed the local officers to notify the entryman that unless he should furnish supplemental proof as required or appeal from said decision holding his entry for cancellation within sixty days, it would be canceled without further notice.

The appeal forwarded is in the following words:

The above named Anders G. Hasselquist hereby respectfully appeals to the Hon. Secretary of the Interior from your decision in the above entitled matter, dated December 17, 1895, holding said entry for cancellation, and assigns as grounds for appeal that he believes his title to be valid under his commutation entry. Under

that belief, and after the commutation receipt had been issued, he sold said land in good faith, and the purchaser thereof has not had his day in court.

The fact that the land was transferred after issuance of final certificate affords no grounds for reversal of the decision holding the entry for cancellation. A purchaser of land prior to issuance of patent takes only the interest of his grantor and is charged with notice of the law and the supervisory control of the Commissioner of the General Land Office over the action of the local officers. (Bender v. Shimer, 19 L. D., 363.)

While the above in the general rule, and while under that rule the appeal here presents no sufficient ground for the reversal of the action of your office, yet the facts presented by the record in this case seem to bring it within the confirmatory provisions of the act of June 3, 1896 (29 Stat., 197), the first section of which reads as follows:

That whenever it shall appear to the Commissioner of the General Land Office that an error has heretofore been made by the officers of any local land office in receiving premature commutation proofs under the homestead laws, and that there was no fraud practiced by the entryman in making such proofs, and final payment has been made and a final certificate of entry has been issued to the entryman, and that there are no adverse claimants to the land described in the certificates of entry whose rights originated prior to making such final proofs, and that no other reason why the title should not vest in the entryman exists except that the commutation was made less than fourteen months from the date of the homestead settlement, and that there was at least six months' actual residence in good faith by the homestead entryman on the land prior to such commutation, such certificates of entry shall be in all things confirmed to the entryman, his heirs, and legal representatives, as of the date of such final certificate of entry and a patent issue thereon; and the title so patented shall inure to the benefit of any grautee or transferee in good faith of such entryman subsequent to the date of such final certificate: Provided, That this act shall not apply to commutation and homestead entries on which final certificates have been issued, and which have heretofore been canceled when the lands made vacant by such cancellation have been re-entered under the homestead act.

If this entry comes within the purview of said law it was confirmed notwithstanding the decision of this Department directing its cancellation. The decision of your office, holding said entry for cancellation, is set aside and the case is returned to your office for further consideration and appropriate action under said confirmatory act.

TIMBER LAND-SETTLEMENT CLAIMS.

BUCKLEY . MURPHY.

The right to take lands chiefly valuable for the timber thereon under the settlement laws is limited to claims asserted in good faith for the purpose of securing a home.

Secretary Bliss to the Commissioner of the General Land Office, April 29, (W. V.D.) (J. L. McC.)

1897.

The case above entitled is one of a considerable number of cases in which pre-emption filings were made, or attempted to be made, on the

morning of the day when lands were opened to entry or filing, in township 66 N., R. 19 W.; Ts. 67 N., Rs. 18, 19, and 20 W.; Ts. 68 N., Rs. 18, 19, and 20 W.; T. 67 N., R. 21 W., all in the Duluth land district, Minnesota.

Lands in the eight townships above described were opened to filing or entry on eight successive days in June, 1893.

On the day when each township was opened to filing or entry, a considerable number of pre-emption declaratory statements were received at the Duluth land office, by mail, which delivered the same at about eight o'clock a. m. The aggregate number of filings thus received were one hundred and twenty-four. They were at once noted on the respective plats and tract-books of the township named.

The declaratory statements above referred to were accompanied by notices of the pre-emption claimant's intention to make final proof. When the door of the local office opened, at 9 o'clock a. m. of the days respectively when the townships above named were opened to entry, a line of applicants was found who presented applications to enter under the timber and stone act certain described lands embracing a part of those already applied for (supra) by applicants under the pre-emption law. The timber land applications were rejected, by the local officers, because they held that the applications of the pre-emption claimants to make final proof so far reserved the land covered thereby as to prevent its being properly entered by others, pending the consideration of said applications. (See case of L. J. Capps, 8 L. D., 406.) Counsel for certain of the timber land applicants reported the above facts, in substance, to your office, and asked for information. Correspondence between your office and the local officers ensued, as the result of which your office sent instructions to the local officers, the gist of which is contained in the following extract from your office letter of July 19, 1893:

In my opinion the instructions on page 64, circular of February 6, 1892, clearly intended that no steps toward making final proof on filings should be taken until after the expiration of three months from the filing of the township plats of survey in your office. This rule was doubtless intended to allow adverse claimants an opportunity to place their claims of record; and this object would be defeated by permitting publication of notice of intention to submit final proof, which would constitute a segregation of the land, and thus debar the entry or filing of another within the three months. You will therefore vacate any notice of intention to make final proof which is now being published in opposition to this opinion; and if no objection exists at the expiration of three months from date of filing plat of survey in your office, notice of intention to submit final proof can then be given. The above instructions were carried into effect, and the timber-land applicants for land covered by pre-emption filings were allowed to complete their filings by paying their fees.

On September 23, 1893 (a few days before the expiration of the three months above mentioned), the register of the Duluth land office wrote. to your office, recommending that a special agent be detailed to super10671-VOL 24-23

vise an investigation of these claims, intimating that there was an attempt to defraud the government, the extent and particulars of which it would be difficult to determine in the absence of reliable testimony, as in nearly all cases tried before the office the testimony was directly contradictory; that the government would be better able to arrive at the facts of the case

by an examination of the land before the claimants got away, for it is a well known fact that niuety per cent of the entrymen in this district under the homestead or pre-emption law abandon their claims as soon as final proof is made and are thereafter hard to find; and if found they all stick together and help each other ont, and the government is beaten.

The above recommendation was denied by your office letter of November 3, 1893, in which the local officers were directed as follows:

You are advised that any filings placed of record prior to the opening of your office on the day when said lands became subject to filing and entry are illegal, and final proof can not be based thereon. In such cases you will allow the claimant of record whose filing or entry is legal to publish notice of intention to submit final proof, duly citing all adverse claimants of record in accordance with the ruling in Reno v. Cole (15 L. D., 174), and advise the claimant whose filing was erroneously placed of record that his right, so far as requiring him to place his claim of record within three months after filing of the plat of survey is concerned, will not be affected by the erroneous action of your predecessor. Should there be cases in which each of two or more claimants have a legal filing or entry covering the same land, any or all of them who desire to do so should be allowed to publish notice of his intention to submit final proof, duly citing the adverse claimants; and if a protest is filed in either case, the hearing should be had on or subsequent to the date the last claimant offers his proof.

Other correspondence ensued, which it is not necessary to set forth in detail. It is sufficient to say that each of the pre-emption claimants, as suggested above, filed an amended pre-emption declaratory statement; that a considerable number of these pre-emption claims were contested by claimants under the timber and stone act; that hearing followed to determine their respective rights; and that, whatever the decision of the local officers might be, an appeal was (generally) taken to your office, and from your office to the Department.

The land in the several townships hereinbefore described is situated in the northeastern part of Minnesota. In numerous cases coming before the Department on appeal, it is shown by competent witnesses that there are from fifteen hundred or two thousand to three thousand dollars' worth of timber on each quarter section. The pre-emptors or their witnesses testify that it will cost fifty or sixty dollars per acre to clear the land of its timber; and that, after it has been so cleared, it will be worth for agricultural purposes five or six dollars per acre.

These statements are substantially corroborated by the investigation of the government and the records of this Department. According to the forestry map prepared to accompany the United States census reports, this region is among the most heavily timbered of any except a narrow strip close upon the Pacific coast. Its growth of pine timber