By a general circular issued by Commissioner Stockslager January 1, 1889, approved by Wm. F. Vilas, then Secretary of the Interior, it was provided that applicants for desert lands must have a personal knowledge of lands they intend to enter; that the averments in the declaration can not be made upon "information and belief," and that the register and receiver must reject all applications where the averments contained in the declaration are not from knowledge "derived from a personal examination of the lands; " furthermore, that "the affidavits of applicant and witnesses must in every instance either of original application or final proof be made at the same time and place and before the same officer."

In the case at bar the applicant did not comply with the requirements laid down in said circular, he had never seen or personally examined the land nor did he with his witnesses execute the necessary papers before the same officer and at the same time and place.

The rule requiring a personal knowledge of the land by the applicant, was first established by general circular issued by Commissioner Sparks, under date of June 27, 1887, and went into effect August 1, 1887. See circular approved December 3, 1889 (9 L. D., 672) and Jacob P. Oswald (11 L. D., 155); also cases decided in accordance with said rule, James W. Sexton (7 L. D., 312), and Violette Hall (8 L. D., 96). After a careful examination of the papers and argument in this case, I can find no just reason for abrogating the present ruling in such cases, therefore the decision of your office is affirmed.

RAILROAD GRANT-EXPIRED PRE-EMPTION FILING.

KRICKLAN v. ST. PAUL AND SIOUX CITY R. R. Co.

A pre-emption filing on unoffered land, under which proof and payment are not made prior to the public offering, raises no presumption of occupancy as against the subsequent operation of a railroad grant.

Acting Secretary Chandler to the Commissioner of the General Land Office, July 7, 1891.

I have considered the appeal of Johann Kricklan from the decision of your office of July 11, 1889, rejecting his application to enter under the homestead law the SE of the SE of Sec. 11, T. 114 N., R. 28 W., Marshall, Minnesota.

The record shows that on August 8, 1857, Richard Holden filed a pre-emption declaratory statement for the tract in question, alleging settlement on May 14, 1857. This filing was on unoffered land and has never been canceled.

On the passage of the act of May 12, 1864 (13 Stat., 74), the tract fell within the indemnity limits of the St. Paul and Sioux City Kailroad Company's grant, and was withdrawn July 15, 1864.

This tract also came within the ten-miles limits of the grant for the benefit of the Hastings and Dakota Railroad Company, under the act of July 4, 1866 (14 Stat., 87).

The road was definitely located on June 26, 1887. The withdrawal for the benefit thereof became effective July 21, 1866. Both the railroads were built opposite the land, but the land has not been selected or listed on account of either grant.

On March 28, 1887, Johann Kricklan applied to enter said tract as a homestead; his application was rejected by the local land officers, and, upon appeal, your office affirmed their action, subject to his "right either to appeal to the Secretary of the Interior or to apply for a hearing for the purpose of affording him an opportunity to show that pre-emption or homestead settlement rights had attached to said land and were subsisting at the several dates of withdrawal and definite location herein before mentioned."

He has appealed to this Department from your ruling rejecting his application. It is shown that Holden's filing on the land was made on August 8, 1857, and the tract was offered at public sale on October 15, 1860, under proclamation No. 664. Accompanying the proclamation was a notice to each pre-emption claimant for any of the lands offered to appear and submit proof on his claim before the register and receiver before the day appointed for the commencement of said sale, "otherwise such claim will be forfeited." Holden offered no proof before the day of the offer to sell, and never has submitted any proof thereon. The tract was in this condition at the dates of the withdrawal for the benefit of the St. Paul and Sioux City Railroad Company, and the definite location of the Hastings and Dakota Railroad Company.

It is a well-settled rule of the Department that the existence of a prima facie valid pre-emption filing of record at the date when the grant became effective, raises a presumption of settlement as alleged and of the actual existence of the claim, which is conclusive as against the grant in the absence of au allegation that said filing was void ab initio. Union Pacific Bailway Co. v. Haines, 11 L. D., 224; Northern Pacific Railroad Company v. Stovenour, 10 L. D., 645.

It will be noticed that the existence of a filing must be prima facie valid in order to create the presumption held to be conclusive against the railroad company. I am of the opinion that this presumption of occupancy raised by the existence of the filing was destroyed by Holden's failure to make proof and payment before the date the tract was offered by executive proclamation in 1860. It should be treated and held to be an expired filing and all rights forfeited under it several years before the rights of the railroads attached. The tract was therefore, prima facie, subject to said grant.

Your office decision is accordingly affirmed.

CONTEST-PRACTICE-INTERVENTION-RELINQUISHMENT.

WEIR v. MANNING ET AL.

In the corroboration of allegations set up in an affidavit of contest the testimony of one witness is sufficient.

A contestant should not be allowed, on filing the relinquishment of the entryman, to exercise the right of entry during the pendency of a plea of intervention setting up fraud and collusion as against the contest.

A contest in which an interveuor has been recognized should not be disposed of prior to the day fixed for hearing, and without notice to said intervenor.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, July 8, 1891.

I have considered the case of Gavin Weir v. John Manning et al., on appeal by the former from your decision of October 12, 1889, affirming your decision of December 22, 1887, in which you held that the affidavit of contest presented by Weir on February 25, 1887, against the homestead entry of Manning for the E., NE. 1 and SW. 1, NE. 1, Sec. 20, T. 5 N., R. 2 W., Salt Lake City land district, was properly rejected.

The record in this case through the action and non-action of the former register of the Salt Lake City land office has become very much confused, but the following is in substance what it shows:

On November 15, 1885, John Manning made homestead entry for the said land, and on February 25, 1887, Gavin Weir presented his affidavit of contest against the same, alleging abandonment. This was not filed by the local officers for the reason, as claimed by the register, that it was not corroborated.

On March 10, following, Alfred E. Manning presented his affidavit of contest against the said entry, also alleging abandonment. There is nothing to show that this was docketed. It was marked filed, but no notice appears to have been issued, nor any action taken thereon. On the 12th of same month, Gavin Weir's attorney, G. R. Maxwell, appeared at the local office with James Weir, and placed on the affidavit of Gavin Weir the corroborating affidavit of said James Weir, and it appears from the evidence in the case that there was one corroborating witness to the affidavit when it was first presented. Upon this, the attorney for Weir asked that the case be filed, docketed, set for hearing, and that notice issue thereon, but the local officers, after filing the paper, declined to issue notice, or set the case for hearing, but held it to await the result of the A. E. Manning contest. Immediately thereafter, the attorney of Weir filed an affidavit or plea of intervention and asked to be allowed to intervene in the Manning contest. This was allowed, the plea was filed and the case set for hearing July 20th following, of which Manning was duly notified.

On June 13, 1887, A. E. Manuing filed his answer to the plea of intervention. The original plea is lost or destroyed, but from the state

ments of Maxwell in his affidavit and brief on file, and from the answer of Manning, I learn that at the time the plea was filed, the affidavit of contest of Weir had been lost or destroyed, and Maxwell alleged in his plea of intervention that it was corro borated by one witness when pre sented on February 25, 1887, and for a second ground of objection to Manning's contest against his brother's entry, he charged that it was collusive and fraudulent. The answer of Manning is inartistically drawn, but it substantially shows that the original affidavit was "supported by the oaths of Gavin Weir and Alexander Weir, and as to the second charge, he does not deny it, but says "The pretense of collusion made in said affidavit and motion for intervention are refuted by the accompanying affidavit."

On June 20, 1887, A. E. Manning filed in the local office a relinquishment by John Manning of his homestead entry. It was sworn to by the entryman at Auckland in the colony of New Zealand, on May 10, 1887. The entry was thereupon canceled, and A. E. Manning was allowed to file a pre-emption declaratory statement for the land, alleging settlement June 7, 1887, and on July 14, following, he made desert land entry for the tract.

On July 20, the day set for hearing the matters contained in the intervention pleadings, Weir appeared at the local office with his attor ney and witnesses, and learned that the case had been disposed of, the entry canceled, and that Manning had made an entry for the land. His attorney asked to have the case restored to the docket and that the local officers hear testimony to show the truth of the allegations of said plea. This was refused. Thereupon, the attorney prepared a copy of the original affidavit of contest as offered on February 25, and as supplemented by the affidavit of James Weir on March 12, 1887, and prepared the affidavits of himself and Gavin Weir and the corroborating witnesses. These were sworn to before the register (Webb) and marked filed July 20, 1887, and the register was asked upon this showing to reinstate the case and make a record of the filing of these affidavits, and it was insisted that as Manning was in default on the issues made by the pleadings, that Weir should have a judgment upon his plea as intervenor. The local officers refused to re instate the case, or to take any action, or to make any record of the transaction from which refusal, and from their action in the case Weir appealed, and made substantially the following assignments of error:

1st. "The register and receiver erred in permitting any entry or filing upon this land pending this intervention."

2. The answer of Manning establishes the main facts and shows a priority in Weir, which it was error to overlook.

3. There was an issue, on the intervention, and it was error to dismiss it without notice or trial, and before return day (July 20).

raised an issue which should have been tried.

The answer

4. Error in not having proof that John Manning authorized the relinquishment.

5. Upon return day, the witnesses for Weir should have been heard, and said case should have been on the docket, and Manning being in default, judgment should have been rendered in the case upon the affidavits filed as upon default.

6. Error in allowing Manning to make entry when it was set forth in the pleadings that his contest was fraudulent, and that he was perpetrating a fraud upon the government.

Notice of this appeal was duly served on Manning. On August 4, 1887, the register transmitted to your office, the appeal and answer to the appeal, but did not send up the affidavit of contest, or the affidavits and plea of intervention or answer thereto, or the copy of affidavit of contest, or the affidavits made on July 20, or any record of the business transacted at his office on the 20th of July, nor does he allude to any of the papers, in his letter of transmittal, but ignores the entire proceeding.

While the case was pending before your office, counsel for Weir, learning of the conduct of the register, suggested a diminution of the record, and asked that the entire record be sent up, and be filed an affidavit setting forth the various matters that were deemed a part of the record and necessary to an understanding of the case. This suggestion and affidavit, your office took no action upon, but passed upon the case sent up and dismissed the contest of Weir, and allowed the desert land entry to remain intact. From this action, Weir appealed, and on May 10, 1889 (L and R, Vol. 95, p. 381), this Department found

that Weir, on or about March 14, 1887, while the contest of Alfred E. Manning was pending, filed his motion to intervene or plea of intervention, in the said contest, claiming priority of right and perhaps, as Manning's answer would indicate, collusion between the two Maunings, regarding the contest of Alfred E. Manning. To properly determine the case, the missing documents should be supplied,

and held that if Weir's plea made him a party he should have been notified of the action to be taken in the case. The same was returned to you with directions to have the missing papers transmitted to your office, if the originals were missing or lost, that the parties furnish copies, etc., and you were directed when you should receive these documents, to consider the case de novo.

Observing the mandate, the local officers were called upon for the missing documents, and the parties were notified of the action of the Department.

Henry W. Manning appeared and exhibited his letters of appointment as administrator of the estate of Alfred E. Manning, deceased, also an affidavit setting forth the names of his heirs, and that they were minors. He was made party to the case and filed an affidavit setting forth what had been done toward reclaiming the land. The register then in the office was unable to find either the affidavit of contest or application to intervene, or any affidavit in support of the same, but a copy of the original affidavit of contest by Weir and the affidavits of Maxwell, Gavin Weir