Appeals from the three decisions rendered by your office, bring the case to this Department for consideration. The first appeal was filed on the 24th of June, 1890, and was from the decision of January 30, and April 2, of that year, and in it the appellant alleged that you erred in holding that Finlayson had exhausted his pre-emption right by mak ing the alleged declaratory statement on land in the Lincoln district, Nebraska; in rejecting his final proof; in overruling his motion for a review; and in not holding that he was entitled to enter at least eighty acres of the land in controversy as an additional homestead under section 6, act of March 2, 1889. The second appeal was filed September 20, 1890, and was from your decision of July 16, of that year, and alleges that you erred in rejecting Finlayson's application to enter said land, under act of March 2, 1889; in holding the timber culture entry of Hochreiter a bar to his entry; in holding that he had no such valid filing or entry of record as would enable him to make a homestead entry under act of March 2, 1889, notwithstanding the timber culture entry of Hochreiter.

At the hearing which followed the protest of Hochreiter when Finlayson presented his final proof, a stipulation, signed by the attorneys for the respective parties, was admitted in evidence, which it was agreed set forth the facts of the case. It was as follows:

It is hereby stipulated and agreed that said Daniel Finlayson, on or about August 30, 1869, made pre-emption declaratory statement No. 4769, upon the SE. of Sec. 24, T. 12 N., R. 3 E., at the Lincoln land office, iu Lincoln, Nebraska, and afterward, and on the first day of September, 1870, said Daniel Finlayson made homestead entry on the S. of the SE. of Sec. 24, T. 12 N., R. 3 E.; and Daniel Finlayson, junior, a son of former, made homestead entry on the N. of SE. † of Sec. 24, in T. 12 N., R. 3 E., on the 6th day of October, 1871; all of which entries were made at Lincoln, Nebraska, and that each of said parties made final proof and obtained title to said tracts embraced in their respective homesteads.

Section 2261 of the United States Revised Statutes, provides that,

No person shall be entitled to more than one pre-emption right by virtue of the provisions of section twenty-two hundred and fifty-nine; nor where a party has filed his declaration of intention to claim the benefits of such provisions, for one tract of land, shall he file, at any future time, a second declaration for another tract.

Under the stipulation filed, and the statute quoted, the register and receiver were justified in finding that Finlayson had exhausted his preemption right, and they properly rejected his proof, and recommended the cancellation of his filing. His filing being invalid, the land was subject to the entry of any other qualified claimant. It was in that situation on the 21st day of March, 1887, when Hochreiter made his tim ber culture entry. It was held in Farris v. Mitchell (11 L. D., 300), that "the occupancy and possession of land by one who asserts no rec ord claim thereto within the period provided by law does not exclude such land from entry under the timber culture law." If this be so when the land is occupied and in the possession of a person who has a right to make a record claim therefor, the rule will certainly not be relaxed

when the person in possession is prohibited by law from making entry or filing.

By the stipulation in the case it appears that while Finlayson filed his declaratory statement for the SE. of section 24, at the Lincoln land office, he made homestead entry for only the south half of said quarter section, while his son took the north half. Under the provisions of section six of the act of March 2, 1889, such persons are allowed to make an additional entry for land sufficient to make up one hundred and sixty acres in all, upon complying with the provisions of that law, and the other laws relating to public lands. The land for which this second entry is made need not be contiguous to that embraced in his original entry, neither can it be land occupied by some prior qualified claimant. It follows therefore that Finlayson's application, of April 21, 1890, to make homestead entry for eighty acres of the land in controversy, under the provisions of that act, was properly rejected by the register and receiver, because of the prior entry of Hochreiter, which gave him a prior right in the land.

The occupancy of the land by Finlayson, and the improvements made thereon by him, were without authority of law, which brings the case within the rule stated in Howell v. Bishop (6 L. D., 608), where it was held that "the wrongful enclosure of public land will not take it out of the class of lands subject to timber culture entry." In Moss v. Quincey (7 L. D., 373), it was held that although land had been broken, yet if it were devoid of timber, it could be entered under the the timber culture law. In the case of John A. Adamson (3 L. D., 152), it was held that if a person makes a timber culture entry of a tract of land upon which some other person is living and has improvements, although not having a claim of record, the fact of such occupancy and improvement is notice, and the entry is made at the same risk as in the case of a claim of record.

That case and numerous others unnecessary to cite, recognize the right to make timber culture entries upon land devoid of trees, although cultivated and improved, the entryman taking the risk of final adjudication. That is precisely what was done in the case at bar. Hochreiter made his entry upon land occupied and improved by Finlayson, taking his risk of final adjudication. Upon such adjudication, it was found that Finlayson at the time of Hochreiter's entry, had exhausted his rights under the law then in force, and had no right to make pre-emption filing for that or any other land, which left the entry of Hochreiter the only one upon the tract.

From the facts of the case, and the decisions of the Department, I think the land in question was subject to entry when Hochreiter made entry therefor, and that you did not err in rejecting the final proof of Finlayson, nor in denying his motion for a rehearing, nor in rejecting his application to make a second homestead entry for eighty acres of

the land in controversy, under the provisions of section six of the act of March 2, 1889.

The decisions appealed from are therefore affirmed.

TIMBER CULTURE CONTEST-REHEARING.

GRIFFIN v. FORSYTH.

Tho failure of the entryman to plant the full acreage, or secure the growth of the requisite number of trees, does not necessarily call for cancellation of a timber culture entry where good faith is manifest.

A rehearing directed by the Department upon the general merits of a case, brings the record before the General Land Office for decision upon all questions that may be thus presented.

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

I have considered the case of Michael Griffin v. Charles Forsyth, upon the appeal of the former, from your decision holding the timber culture entry of the latter intact, for the NW. of section 6, T. 106 N., R. 32 W., Marshall land district, Minnesota.

Forsyth made entry for the land on the 7th of March, 1878. On the 27th of July, 1885, Griffin filed affidavit on contest against said entry, alleging failure to comply with the requirements of the timber culture law by the entryman, each and every year up to that time.

Upon the trial, Griffin asked to be allowed to amend his contest affi davit, by adding thereto an allegation that Forsyth had sold part of the land to his father, and the other part to his brother, that the brother had purchased the part from the father, and then owned the whole tract, and that Charles Forsyth, the entryman, had no interest therein whatever.

The amendment or motion was not allowed and trial was had upon the issues raised by the original affidavit. It resulted in the register and receiver holding Forsyth's entry for cancellation. This judgment was affirmed by your office on the 28th of May, 1886, except that you ex pressed disapproval of the action of the local officers in disallowing the proposed amendment to the plaintiff's affidavit of contest. The judgment being in his favor, Griffin was satisfied therewith, notwithstanding his amendment had been disallowed, but Forsyth appealed therefrom to this Department. The decision upon that appeal was ren dered on the 13th of June, 1888, and is reported in 6 L. D., 791.

Without expressing any opinion as to whether the entry should or should not have been canceled upon the proof produced upon the trial this Department ordered that a re-hearing before the local officers should be had, and they should be instructed to permit the contestant to introduce the evidence proposed, relative to the sale of said land, and the parties should also be allowed to offer any additional evidence they

might have, relative to the validity of the entry and the entryman's compliance with the requirements of law.

The re-hearing in pursuance of such order, was set for the 18th of September, 1888, at which time the proposed amendment was allowed, and the evidence introduced was confined to that subject, neither party offering any as to the compliance of the entryman with the requirements of the timber-culture law.

On the 10th of December, 1888, the register and receiver rendered their decision, holding that Griffin had failed to show that Forsyth had parted or agreed to part with his interest in the land, but expressing no views as to his compliance with the law, stating that their views upon that subject could be found in the record of this case, evidently refer ring to their decision rendered upon the first hearing.

From this last decision of the register and receiver, Griffin appealed to your office, and on the 26th of March, 1890, you affirmed the judg ment so far as it held that Griffin failed to establish the transfer of the land by Forsyth, and reversed the former decision of the local office, which held the entry for cancellation, and held the timber culture entry of Forsyth intact. An appeal by Griffin from your judgment, brings the case to this Department for consideration.

I find no difficulty in concurring with the local office and your office in the conclusion reached as to the transfer of the interest of Forsyth in the land. The evidence upon this point is that at one time Forsyth made an arrangement with his father, by which the latter was to have the west eighty acres of the tract, in consideration for which he was to let his son have a horse, wagon, and some other property. Before any transfer of the land, of any character, was made, Forsyth paid his father for the horse, wagon, etc., and thus became released from any obligation to make the transfer. His arrangement with his brother George, was that the latter might live upon the land and have what crops he could raise, in consideration of his planting and cultivating the trees required by law. George never claimed to have any interest in the land other than in accordange with this arrangement, and his father never claimed any interest in it whatever. The house upon the land was built and occupied by George. Several witnesses testified to certain hearsay statements, of a negative character, but there was no evidence in the case to disprove or discredit that of Forsyth, on the question of his interest in the land. This disposes of that branch of the case, and leaves for consideration the question of the entryman's compliance or non-compliance with the requirements of the timberculture act.

That a large portion of the land was cultivated to crop each year, is not disputed, leaving the number of acres planted to trees, and the result of such planting, the only matter in controversy. Griffin and his witnesses, including his surveyor, place the number of acres planted in trees at six and three-fourths, and the number of trees growing

thereon at 3040. The surveyor for Forsyth gives the quantity of land planted in trees as eight and fifty-four hundredths acres in one piece, and four-tenths of an acre in another. His witnesses who counted the trees put the number at 3625.

The surveyor of Griffin testified that he did not measure the small piece which went to make up the quantity found by Forsyth's surveyor, and that he run his lines quite close to the rows of trees on the other part of the land, while the surveyor for Forsyth said he ran his lines two feet outside of the outside row of trees embraced in each lot. He also testified that there was another piece containing one and forty six hundredths acres, which had been planted in trees, and upon which were a few living trees at the time of his survey, but he did not include this in his estimate of land occupied by trees.

In Thompson v. Sankey (3 L. D., 365), it was held that in view of the claimant's good faith, the fact that he had but eight and a half acres, instead of ten under cultivation and planted as required, should not cause cancellation of his entry. In that case, and in Jackson v. Grable (7 L. D., 365), the entryman was advised of the importance of fully complying with the requirements of the law, both as to the number of acres planted, and the number of trees growing, before making final proof. To the same effect are the decisions in Purmort v. Zerfing (9 L. D., 180), and Harrison v. Schlagenhauf (11 L. D., 189).

In Kelsey v. Barber (11 L. D., 468), and in Friel v. Bartlett (12 L. D., 502), as also in Cropper v. Hoverson (13 L. D., 90), it is held that the failure of the entryman to secure the requisite growth of trees does not call for cancellation, where such result is not due to negligence in planting and cultivation, if good faith is manifest.

In his notice of appeal to this Department, and in his argument in support thereof, the counsel for Griffin insist that you erred in reversing the former decision of your office, in the absence of any motion for review or reconsideration, and without additional evidence on the question of the entryman's compliance with law, and in not holding the entry for cancellation as to part of the land, or subject to amendment in that respect as suggested in the decision of this Department directing a rehearing.

This Department in ordering a re-hearing in this case, distinctly directed that the proposed amendment to the affidavit of contest should be allowed, and that evidence upon that and the main question should be received, if offered. This opened the whole case for review and cousideration, and justified you in rendering a decision upon all the questions involved. The suggestion in the decision of this Department, to which reference is made, was that there might sometime be a case, as in Linderman v. Wait (6 L. D., 689), where the equities required the exercise of its discretion, as therein stated. That case has never been cited or followed in any volume of the decisions since the one in which it is reported, and the rule as here stated, has since been adhered to. The decision appealed from is affirmed.