are concerned was a withdrawal of said land from other disposition until such time as it was finally disposed of; see Pfaff r. Williams et al, (4 L. D., 455).

In view of the foregoing the application of Ward to enter said tract is considered the first in point of time, and being so, his entry will be allowed to stand and that of Hardendorf canceled.

The application to contest filed by Ward does not seem from the record to have been allowed by the local officers and no day was set for hearing or notice given, but if such proceedings had been had or commenced, Ward could have acquired no preference right thereby for a contest against a pre-emption filing is not recognized by this Departmeut. (Field v. Black, 2 L. D., 581.)

The local officers seem to have fallen into error by failing to recognize the principle last above stated and their decision that Ward had a preference right of entry by reason of his application to contest was erroneous. Ward's right was based upon the application to enter filed October 15, 1887, for a legal application to enter is, while pending, equivalent to actual entry, so far as the applicant's rights are concerned, and withdraws the land embraced therein from any other disposition, until final action thereon. Pfaff v.. Williams, et al., (4 L. D., 455).

Hardendorf made his entry subject to whatever rights Ward had,. and the mere fact that the local officers called the same a preference right, instead of basing it on his application to enter, cannot now makeHardendorf's claim superior to that of Ward. Your said decision is accordingly affirmed.

PRACTICE-APPEAL-MOTION FOR REVIEW.

DAYTON v. DAYTON.

An appeal will not lie from a letter of the General Land Office promulgating a departmental decision.

A petition for re-review will not be granted unless it presents facts, or points of law, not previously discussed or involved in the case.

It is not a good ground for such a petition that the oral argument on review was heard: by the same official that rendered the decision in the first instance.

Secretary Noble to Acting Commissioner Stone, July 17, 1889.

With letter of June 20, 1889 you transmitted motions by James R.. Dayton and Lyman C. Dayton for a review and reconsideration of the decision of February 25, 1889 in the case of Dayton v. Dayton (8 L. D., 248). The decision sought to be reviewed was rendered upon motions. by each of these parties for review of departmental decision of October 1, 1887, in the case of Dayton v. Daytou (6 L. D., 164).

Lyman C. Dayton sets forth that he filed a motion for review of the decision of Acting Secretary Muldrow rendered October 1, 1887, and applied for an oral argument; that said argument was heard by said act-

ing secretary and "That the appellant considers that his rights have been prejudiced by reason of the said review and reconsideration of the decision of October 1, 1887, being heard and determined by the same official of the land department who rendered the same in the first instance." This objection is without force even if the facts sustained it. The records, however, show that the motion for review was considered and the decision refusing the same was signed by Secretary Vilas. The other reasons set forth in the motion now being considered are exactly the same as were presented in the motion for review.

The motion by James R. Dayton is based upon the ground that the question of good faith on his part had not been raised until the decision of October 1, 1887, and that he had not been afforded an opportunity to present testimony showing his good faith. He filed with his motion the affidavits of three parties in support of the claim that he was all the time acting in this matter in entire good faith. This question was presented when the original motion for review was before the Department, and was then fully considered. The affidavits do not present such new facts as would justify a change of the decision then rendered.

In the case of Neff v. Cowhick (8 L. D., 111), it was held that motions for re-review should not be allowed but that "if the defeated party is able to present any suggestions of fact or points of law not previously discussed or involved in the case, it may be done by petition which shall contain all the facts and arguments." The papers now under consideration even if they are to be considered as such petitions as are contemplated by the ruling cited, do not present any suggestion of fact or point of law not previously fully considered and determined in the decision refusing the motion for review. The said motions or petitions are therefore each denied.

By letter of May 6, 1889, your office also transmitted an appeal by Lyman C. Dayton from your office letter of March 8, 1889, promulgating departmental decision of February 25, 1889, and directing the local of ficers, "to notify the parties in interest that sixty days are allowed after due service of notice in which to present the claim of the City of Aberdeen under the townsite laws, and no entries will be allowed until such time as the right of said city may be determined," and also a motion by the City of Aberdeen to dismiss said appeal. This motion is made upon the ground that said action of your office "was not a decis ion in the case but was solely ministerial as carrying into effect the decision and order of the Secretary of the Interior of February 25, 1889, and for this reason no appeal can lie."

It is plain that said letter of your office to the local officers was simply for the purpose of carrying out the directions of the Department, and was in no sense a decision from which an appeal would lie.

The motion to dismiss is allowed, and said appeal is hereby dismissed.

TIMBER CULTURE CONTEST-“DEVOID OF TIMBER.”

MORROW v. LAWLER.

The departmental construction of the timber culture act, prevailing at the time when an entry is allowed thereunder, must govern in determining whether such entry is for land of the character contemplated by said act.

First Assistant Secretary Chandler to Acting Commissioner Stone, July 17, 1889.

I have before me the appeal of John D. Lawler from your decision of March 23, 1888, holding for cancellation his (said Lawler's) timber cult ure entry, No. 1847, Springfield series, made August 19, 1879, and covering the NE. 4, Sec. 22, T. 104 N., R. 71 W., Mitchell district, Dakota.

December 30, 1885, Charles C. Morrow initiated a contest against said entry on the ground that the section in question was not, at the date of entry, naturally devoid of timber; and on the farther ground that the entryman was in default, the breaking and cultivating not having been properly done, and there not being ten acres of trees (other than those spontaneously upon the land) growing on the tract at the date of contest.

On March 9, 1886, pursuant to a notice duly issued, the contestant appeared with his counsel before J. A. Strube, a notary public at Chamberlain, Dakota, who had been appointed commissioner to take testimony, and the claimant appeared by his attorneys, J. T. Stearns and W. A. Porter. On this occasion nineteen witnesses (including the contestant himself) were examined on the part of the contestant and crossexamined by the attorneys for the claimant.

On May 12, 1886, the claimant, through his attorneys, submitted the testimony of eight witnesses (including J. T. Stearns, his agent and attorney), at the local office at Mitchell.

Pursuant to your office order of August 17, 1886, a further hearing was had in the case on September 13, 1886, before John T. Williams as commissioner; at which hearing the contestant appeared in person and by attorney, and examined eight witnesses. The contestee's attorney was present, but protested against this additional testimony, substantially on the grounds that the evidence offered was not properly rebuttal testimony, and that the commissioner, not having heard the evidence in chief, was not competent to take testimony offered as in rebuttal. I find it unnecessary to pass upon the objection, inasmuch as my conclu sion as to the facts does not rest upon the testimony objected to.

The entry having been made August 19, 1879, the construction of the law then prevailing, as to what land is "devoid of timber" within the meaning of the act, must be taken to be that indicated by the decision in Linden v. Gray (3 C. L. O., 181), made January 4, 1877; which construction seems to have remained substantially in force until after the

date of Lawler's entry. See Nicholas Noel, 6 C. L. O., 112, decided September 12, 1879, followed by your office in B. F. Griffin, 6 C. L.O., 154, on December 18, 1879. The case of Blenkner v. Sloggy (2 L. D., 267), the earliest departmental decision relied on by the entryman's counsel, was not made until July 18, 1883. What, then, is the rule in Linden v. Gray, which is thus pointed out as the one which must govern this case? The following passage from the opinion shows:

At the trial two witnesses testified that there were six hundred and eighteen trees on the section that measured over five inches in circumference six inches from the ground; that some of them were upwards of one foot in diameter, and that the six hundred and eighteen trees would average ten inches in circumference. Also that there were over a thousand smaller trees growing upon the section, mostly oak and elm. If such is the fact, I think your decision holding that the land was subject to timber-culture entry is erroneous . . . . . . . . . . . . . It cannot, I think, be reasonably considered that a section of land upon which the number of forest trees above specified are growing, is naturally devoid of timber or that it is of the class of land subject to entry under the provisions of the (timber culture) act.

The testimony in this case, confused and contradictory as it is, very decidedly, in my opinion, establishes a state of facts, as to the spontaneous growth of timber upon the section, very much stronger against the entry here in question than that which in the leading case referred to was held to be clearly fatal.

D. W. Spalding, who "located" Lawler's entry, and who, as one who had specially examined the tract at about the time that the entry was made was introduced as a witness on behalf of Lawler, was asked whether there were not, at the date of hearing, "growing in all the gulches native timber, cedar, elm, ash, cottonwood, over thirty thousand trees ranging from two to twenty inches in diameter and from ten to forty feet in height?" His answer was: "I haven't counted them, but I shouldn't think there was that many there of that size. I don't think there was one third of that number that size: there might be a fourth or more although I never counted them." This and similar admissions by Lawler's own witnesses seem to me very largely to corroborate at least the general purport of the testimony of Morrow's eighteen witnesses in chief, to the effect that there were from six to eight or ten acres of native timber growing upon the section, embracing several hundreds of standing trees of considerable size, and quite a number of stumps, (the presence of which is significant as implying that to some extent at least the tract had been actually resorted to for a supply of timber).

Taking all the testimony together, I cannot doubt that, at least according to the rule above shown to have been the one prevailing at the date of Lawler's entry, the tract covered thereby was not so far "devoid of timber" as to be properly open to entry under the timber-culture law.

Upon this ground I affirm the decision appealed from. I do this without passing upon the question of the alleged default of Lawler in respect to breaking, cultivation, etc.; it being doubtful, in my opinion, whether

the entryman has been satisfactorily shown to have incurred forfeiture upon that ground.

RELINQUISHMENT—ACT OF JUNE 15, 1880.

GEORGE T. JONES.

A transferee, holding under the purchase of a final certificate, will be protected as against the subsequent relinquishment of the entryman.

A cash entry under the act of June 15, 1880, allowed on the affidavit of the entryman's attorney, will not be disturbed, where, after transfer of the land, the entryman refuses to make the personal affidavit required by the regulations.

Secretary Noble to Acting Commissioner Stone, July 17, 1889.

I have before me the appeal of George T. Jones from your office decision of May 12, 1888, affirming the action of the local officers rejecting his (said appellant's) application to make homestead entry, of the NE. 4, Sec. 17, T. 2, R. 24 W., Kirwin land district, Kansas.

From the record before me the following facts appear:

January 9, 1880, one Joseph J. Sperry made homestead entry No. 13781 for the tract above described.

May 12, 1884, Sperry's duly appointed attorney, John R. Horn, made cash entry No. 3434, under the second section of the act of June 15, 1880 (21 Stat., 237), for said land.

On the 14th day of May, 1884, said Sperry sold the tract in question, for a consideration of $300, to William E. Crutcher, to whom he executed a formal deed, and delivered the cash certificate issued by the local office.

April 18, 1885, your office suspended the said cash entry "for the reason that the affidavit required in such cases was made by the (claimant's) attorney, instead of the claimant himself," and Sperry was therefore required to furnish a personal affidavit.

December 14, 1885, Sperry, who had declined to make the personal affidavit called for by your office, executed a relinquishment of his entry before the register.

December 14, 1885, cotemporaneously with the execution of said relinquishment of Sperry's entry-Jones, the appellant here, made appli cation to enter the land under the homestead law. This application the local officers rejected on account of the existing cash entry of Sperry (No. 3434). From such rejection Jones appealed.

June 22, 1886, the local officers transmitted an affidavit by Wm. E. Crutcher, setting up the above-recited facts as to his purchase of Sperry's interest in the entry, and Sperry's refusal to perfect his proof, and petitioning that, in view of those facts, the proofs already filed in the case be accepted and a patent issued thereupon.

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