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prove said land during all of the time that he was absent therefrom. Under date of September 22, 1884, Turner, through his counsel, filed in your office a motion for review of said decision of August 9, upon several grounds therein stated, and on September 26, same year, he filed au application for a rehearing before the district land officers. On October 13, 1884, your office denied both the motion and the application for a rehearing, and an appeal was duly taken from said original decision upon the following grounds:

1st, The Commissioner erred in reviewing the decision of the register and receiver, because Robinson failed to file an appeal therefrom.

2d, In holding that Robinson established and maintained a bona fide residence upon the land covered by his homestead entry.

3rd, In deciding that the testimony did not sustain the charge of abandonment.

4th, In refusing to order a new trial to show that Robinson had abandoned the land in question since the date of the last trial.

It appears from the record that a paper was duly filed in the office of the register and receiver that was treated by them as an appeal, and so considered by your office. It is true that said appeal is not as specific as the rules require, yet no objection was made to the filing thereof, nor was any notice given to Robinson to perfect the same.

Again, since Turner has appealed from the decision of your office, he is estopped from denying the jurisdiction of this Department to pass upon the whole record. Griffin v. Marsh (2 L. D., 28).

A careful examination of the testimony shows that the second and third grounds of error are not well taken.

Great stress is laid by counsel for the appellant upon the fact, that Robinson established his residence in the upper story of a building upon the land in question, which had been used some years before by the Masonic fraternity. The first story was used by the public for religious worship, debating exercises, and singing school gatherings.

That Robinson established his residence in the second story of said building prior to the expiration of the six months from the date of his entry, there can be no question. It was within the time prescribed by law. Bennett e. Baxley (2 L. D., 161); Baxter r. Cross (ibid., 69).

It can make no difference that the house occupied by Robinson was placed there by the public and the upper story used by the Masonic fraternity. The Masons abandoned it long prior to Robinson's entry. No one was in possession of the building, and no one claimed to control or own that portion occupied by him for a residence. Lansdale v. Daniels (100 U. S., 113).

It is shown that Robinson is a single man; that he made said entry while on his way to the State of Georgia to visit his aged mother; that he was detained there much longer than he expected by her sickness and death; that he hastened back to his homestead claim and arrived

there a few days prior to the expiration of the time for commencing his residence thereon, without a dollar in his pocket; that he immedi ately went to work upon the land to improve it; and that his absences from the land were temporary, and for the purpose of earning an honest livelihood. It is not shown that Robinson did not at all times intend to return to the land, and his absence, teaching school and "boarding around" in the neighborhood, do not militate against the good faith of his residence. Waldo . Schleiss (1 C. L. L., 234); Edwards r. Sexson (1 L. D., 89); Sandell . Davenport (2 L. D., 157); Clark r. Lawson (ibid., 149).

The fourth ground of error is equally untenable.

It has been uniformly held by this Department that the matter of hearings is confided to the sound discretion of the Commissioner of the General Land Office, and, although his refusal to order a hearing may be appealed from when it amounts to a denial of right, yet his decision upon that question will not be lightly reversed or set aside, except upon the most substantial grounds of error. Guyselman v. Schafer et al. (3 L. D., 517); Leitner v. Hodge (2 B. L. P., 291).

In the case at bar there was full opportunity for the contestant to present his testimony at the hearing and to cross examine the witnesses of the claimant, and it is not pretended that there is any newly discovered evidence in the case. The refusal of your office to order a rehearing was correct. Rancho Las Virgenes (2 L. D., 345).

It is further insisted by the appellant that said decision should be reversed, for the reason that Turner went upon the land embraced in said entry and made valuable improvements under the advice of a special agent of your office.

It is well settled that a homestead entry segregates the land covered thereby, and that acts which would constitute settlement, if the land was unappropriated, can give no legal right so long as the entry remains uncanceled. McAvinney e. McNamara (3 L. D., 552). It was no part of the duty of said special agent to determine the result of the contest, and when Turner went upon said tract and made his improvements he did it advisedly and took his chances in the result of his contest.

If it be true that Robinson has abandoned said land since the initiation of said contest, I see no legal reason why Turner, or any other person, may not commence another contest, after the final determination of the present proceedings, and, upon a successful prosecution of the same, acquire a preference right to enter the land. Houston v. Coyle (2 L. D., 58).

A careful consideration of the whole record fails to show any error in the decisions of your office upon the merits of the case, and upon the motion for review and application for a rehearing, and they are accordingly affirmed.

DISCONTINUANCE OF SUIT.

UNITED STATES v. HAWford.

Discontinuance of suit advised on the facts stated.

Assistant Secretary Muldrow to the Attorney General, May 28, 1885.

Your letter of 26th March last, inclosing a copy of the letter from the Solicitor of the Treasury, of March 14, 1885, together with a copy of the bill in equity in the case of the United States v. Hawford, pending in the U. S. Court for the Eastern District of Louisiana, was received and referred to the Commissioner of the General Land Office. I have the honor to inclose herewith copy of his report on the subject, under date of the 22d instant. He is of opinion that the suit against Hawford should be discontinued, in view of the facts that Hawford has died insolvent, and that the matter is now pending in the Court of Claims. In this opinion I concur.

CONTEST-ENTRY.

MCKIBBEN v. DONOVAN.

MANGIN . DONOVAN ET AL.

Where the contestant failed to appear at the hearing and the contest was dismissed, he thereby lost all right to proceed therein, a subsequent contest having intervened.

Two contests against the same entry at the same time cannot be recognized.

No legal claim can be founded by settlement upon land covered by the timber culture entry of another.

Acting Secretary Muldrow to Commissioner Sparks, May 29, 1885.

I have considered the case of Charles H. McKibben v. Cornelius Donovan, involving the SW. of Sec. 23, T. 103 N., R. 71 W., Mitchell, (formerly Springfield,) Dakota, on appeal from your decision of November 20, 1884, favorable to McKibben. The appeal is brought not by Donovan, the defeated party to the contest, but by James G. Mangin, whose standing in the case will fully appear in the following recital. Donovan made timber culture entry for the tract in question November 20, 1879.

McKibben having filed affidavit of contest, (together with application to enter,) charging abandonment and failure to comply with the requirements of the law relative to cultivation, and planting trees, seeds or cuttings, a hearing was ordered and had in January, 1884, pursuant to notice under the rules.

Donovan failed to appear, either in person or by counsel. The testimony submitted by contestant was considered and found by the reg

ister and receiver to sustain the allegations contained in the affidavit of contest. A judgment of forfeiture was therefore entered against contestee, Donovan, from which judgment no appeal was taken. On November 20, 1884, your office approved the finding of the local office, and on the 9th of December following McKibben made entry under the timber culture law.

Thus much for the contest of record in the case of McKibben v. Don

ovan.

Now, as to James G. Mangin, the present appellant, it appears that with the letter of the register and receiver, transmitting the record in the McKibben-Donovan case, were enclosed certain ex parte affidavits, filed by Mangin to be forwarded. Among these is one by Mangin, (the others are filed as corroborative,) to the effect that he settled upon the tract June 8, 1883, built a house, broke thirty acres, and made other improvements involving altogether an expenditure of $1,200; and that he has resided with his family thereon continually since.

He further states that on the day of settlement (June 8, 1883,) he initiated contest against Donovan's entry, and that due proceedings were had thereon to the day of hearing, when he (Mangin) failed to appear and submit testimony, the reason for such failure being that he had been informed by one Clark, a real estate agent, that his appearance was unnecessary; that by reason of his default the contest was dismissed; that he had no notice of said dismissal, until November 12, 1883; that on the next day (November 13) he presented at the local office another application to contest said Donovan's entry, when he found that the contest of McKibben had just been filed and that because of the pendency thereof his could not be recognized.

On the 8th of August, 1884, the register and receiver transmitted to your office several affidavits which had been presented by McKibben (including his own) intended to controvert many of the allegations made by Mangin, in the affidavits above referred to. As you have said, the affidavits filed in support of the allegations of Mangin and McKibben, respectively, were made by the same affiants, which fact would detract much from their weight, if they were to be considered in this connection. It is apparent, however, that their consideration can, under the circumstances, have no weight or influence in reaching a conclusion in the case as before me, and a reference to them is only useful by way of recital to show how Mangin comes to be in the case as an appellant.

In view of what has been said, the case resolves itself simply into this: Mangin, by reason of his default at the hearing on his orig. inal contest, lost all right which he might otherwise have asserted thereunder, and he does not now deny the correctness of the ac. tion dismissing said contest. The refusal of his second application on the ground of the pending contest of McKibben was also proper, as two contests against the same claim at the same time cannot be recog

nized. The entry of Donovan was canceled, and properly so, on evidence furnished by contestant, McKibben, who thereby secured a preference right of entry.

The proceedings throughout appear to have been regular, and it is clear that under them Maugin can have no legal claim by virtue of his settlement and residence, since at the alleged date of settlement the land was appropriated by Donovan's entry, and upon its cancellation McKibben, by virtue of his contest and application, succeeded to a full right to enter, which right he promptly exercised. This entirely cut off any claim which Mangin might otherwise have had by virtue of his settlement. Any hardship which may inure to him is due wholly to his own laches in not pursuing the remedy which at one time he had in his hand, and might have made effectual, to wit, his contest against Donovan. It is not in the power of the Department to give relief in a case like this, where rights of other parties, under the law and regulations, have intervened.

The decision of your office is affirmed.

CONTEST-ENTRY-CANCELLATION.

SULLIVAN v. SEELEY.

DUDGEON v. SEELEY.

The local officers have no authority to cancel an entry except on the filing of a relinquishment under the act of May 14, 1880.

The finding of the local office, on a hearing, that an entry should be canceled will not effect such cancellation without the order of the Commissioner of the Land Office, although no appeal is taken from the decision of the local office.

Acting Secretary Muldrow to Commissioner Sparks, May 29, 1885. On October 13, 1882, Elsie Seeley made homestead entry No. 10,004, Bloomington, Nebraska, for the NE. 4 of Sec. 25, T. 5, R. 23, and on June 9, 1883, Nathan Sullivan filed contest against the same, alleging abandonment, etc. After hearing, on January 10, 1884, the register and receiver sustained the contest, recommending the cancellation of the entry. On January 24, 1884, there was filed in the local office a written withdrawal and dismissal of the Sullivan contest; and on the same day the papers in the case were forwarded to your office.

On February 26, 1884, J. A. Dudgeon applied to file declaratory statement on the premises; his application was rejected and he appealed, On June 19, 1884, your predecessor informed the register and receiver that, on their report, the contest of Sullivan v. Seeley was closed," and that their judgment rejecting the declaratory statement of Dudgeon was affirmed. From this last decision the latter appealed.

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On July 17, 1884, Dudgeon also filed contest against Seeley's entry, alleging abandonment, etc. Hearing was had and on October 7, 1884,

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