It will be observed that there is no allegation in either of the affi davits that would bring this application within the purview of the act of Congress, June 16, 1880 (21 Stat., 287). Neither is there any showing of good faith or vigilance on the part of Stahle, to comply with the law. He says he found the water he intended to use had been appropriated. But he does not say when he ascertained this fact. He did not execute a "proper relinquishment of all claims to said land" when he learned it. In his affidavit for entry he gives his occupation as a surveyor, and says he is acquainted with the land by travelling over it, therefore it is fair to presume that he had full knowledge of all facts necessary to reclaim this land, and if he had exercised due diligence he could have secured the water. W. S. Jackson (10 L. D., 12). Your decision is, therefore, affirmed.

CERTIORARI-PRICE OF COAL LAND.

EDWARD B. LARGENT ET AL.

The writ of certiorari will not be granted where the right of ap peal is lost through failure to assert the same within the prescribed period.

The price of coal land is to be determined by the distance of the land from a conpleted railroad at the date of the entry, and not at the date of the application. Acting Secretary Chandler to the Commissioner of the General Land Office, October 13, 1891.

I have considered the application of Edward B. Largent and George C. Swallow, assignees of Haviland B. Strong, for a writ of certiorari, directing your office to transmit to the Department the record in the case of their application for re-payment of an alleged excess of $10 per acre, paid by Haviland B. Strong, on his coal land entry of the N. NW. of Sec. 13, T. 19 N., R. 4 E., Helena, Montana.

The application before me shows that on June 29, 1888, Strong made coal land entry for the tract in question, alleging settlement July 22, 1886; plat of survey was filed December 23, 1882.

On the day his entry was made, he paid for the tract at the rate of $20 per acre, and received final certificate, No. 52, therefor.

It is now alleged, that on the 1st day of October, 1887, Strong offered proof that there was no completed railroad within fifteen miles of said tract, and at the same time tendered the amount of purchase money necessary to pay for the land at $10 per acre, but was prevented from making entry by one George Bagnell, who had filed a protest against the allowance of his entry, and this protest had effect to delay the entry, until by the construction of a railroad within fifteen miles of the tract, the price was raised to $20 per acre.

The extra ten dollars per acre was paid by Strong under protest, and his assignees soon after filed an application for re-payment for the alieged excess.

This application was denied by your office on May 5, 1890.

On March 25, 1891, an appeal from your decision of May 5, 1890, was transmitted to your office by the register of the local land office, to gether with a statement that all parties in interest had been duly noti fied of the decision of May 5, 1890.

On April 9, 1891, you decided that no appeal would lie from the decision of May 5, 1890, because not taken within the period allowed by the rules of practice. The right of appeal was therefore denied.

The statement is found in said decision that the appeal was not asked for within the time allowed by the rules, but it nowhere appears when notice of the decision from which an appeal is asked, was served upon the parties asking for the appeal.

I have examined the record in your office, and find not only no proof of any service, but not even a statement of the date of any such service. It is difficult to see how you determined that the appeal was not asked for in time under such circumstances.

It is a well settled rule that the service of notice must affirmatively appear. Parker v. Castle, on review (4 L. D., 84); Milne v. Dowling (4 L. D., 378); Churchill v. Seely et al. (4 L. D., 589); English v. Noteboom (7 L. D., 335); Pierpoint v. Stalder (8 L. D., 595).

It not appearing in said decision, nor from the record in the case, when the notice was served, I am unable to determine whether the appeal was taken in time or not.

In the decision complained of, however, it is decided that the appeal was not tendered in time, service of notice of this decision is admitted in the application before me and the fact not denied that the appeal was not tendered in time under the rules. There is no contention in said application that applicants did not receive notice of the decision of May 5, 1890, and that the appeal was tendered in time.

In fact it tacitly admits that the appeal was not taken in time, but makes a plea to the effect that the matter is between them and the gov ernment, and that if the appeal had been allowed no harm to any one else could result from it.

The applicants ask the Department to use its supervisory authority and order the record to be brought before it, because such an act would be harmlesss.

But such an order should not be made unless a right has been wrong. fully denied to them, and such denial will result in their injury.

It is a well settled rule that the writ of certiorari will not be granted where the right of appeal is lost through failure to assert the same within the prescribed period. Thompson v. Shultis (12 L. D., 62); Nichols v. Gillette (12 L. D., 388).

No showing is made that any good reason existed why the appeal should not have been taken in time, and for this reason the application might be denied. Besides the petitioners have failed to show that your office decision of May 5, 1890, is erroneous, or that substantial justice has not been done in the case.

I have examined your decision complained of and think that it is supported by the law and the evidence. The filing of the protest against the entry of Strong was a risk that must be assumed by all who apply to enter the public land. The fact that in this particular case it had the effect to postpone the entry until after a railroad was completed within fifteen miles of the tract, which under the law doubled the price of the land, is only incidental, and the government can not be properly held chargeable for the delay occasioned by Mr. Bagnell's protest. It is quite probably true, as the law presumes, that the construction of the road within fifteen miles of the entry materially enhanced the value of the land to a sum which would justify the entryman in paying the $20 per acre therefor.

The law is explicit in its declaration, that if at the date the entry of coal land is made there is a completed railroad within fifteen miles of the land, the price to be paid for the land is $20 per acre and the fact that at the date an applicant for entry offers to make an entry, no railroad is completed within fifteen miles, and consequently the price of the land is only $10 per acre can have nothing to do with fixing the price at the date of the actual entry. The law only provides what the price shall be at the date of entry and payment, irrespective of the preference right of entry. See circular of July 31, 1882 (1 L. D., 687).

After examining all the questions involved in this application, I am unable to conclude that the case is one which, as it stands, would justify interposition under and by virtue of the supervisory authority existing in this Department.

The application is therefore denied.

HOMESTEAD ENTRY-TOWNSITE SELECTION IN OKLAHOMA.

NORMAN TOWNSITE v. BLAKENEY.

Land claimed and selected as a townsite, and with improvements thereon for the purposes of trade, business, and residence, is not open to homestead entry. Secretary Noble to the Commissioner of the General Land Office, October 13, 1891.

I have considered the motion by the defendant, for a review of departmental decision of July 8, 1891, in the case of the townsite of Norman v. Robert Q. Blakeney, involving title to the Eof SW of Sec. 29, T. 9 N., R. 2 W., Oklahoma City, Oklahoma.

A number of reasons are assigned in the motion for review why the decision of July 8, 1891, should be recalled and not adhered to, however, after considering each, and after arguments of counsel have been submitted, it appears to me that the only serious contention on the part of Blakeney is that at the time of the filing of his application to enter the tract, it was unappropriated government land and as such, was

subject to entry under the homestead law, and being such the departmental decision, holding substantially that the tract was appropriated by its selection as a townsite before his application was filed, was

erroneous.

It appears that on April 22, 1889, an application was made by one Clark to enter the tract in question, together with other land, aggrega ting three hundred and twenty acres, as a townsite.

On August 6, 1889, it was held by your office that this application was not made by the proper officer, nor in other respects according to the law, therefore it was held to be "not admissible as the foundation of an entry." However, for the purpose of ascertaining whether or not the tract had been selected as a townsite, your office directed a hearing to ascertain when the tract was first selected and occupied as a townsite. On November 6, 1889, Blakeney applied to make a homestead entry on the Eof the quarter section in question, which was rejected.

The trial directed by letter of your office of August 6, 1889, had not been had at the date of Blakeney's application, accordingly he was cited by your office to appear at this hearing.

The trial was held on June 10, 1890. It was shown by the evidence submitted at this trial that at the time of making his application, Blakeney knew that the west half of said section was claimed and occupied by the people of Norman as a townsite; he also knew that a map had been made of said town, including the east half of said quarter, and the evidence shows that some of the east half thereof had been surveyed and laid off into streets and alleys, and that at the date of his application, the material for a number of houses had been placed on these lots, quite a number of them had been staked off and some had been partially fenced, all of this improvement and preparation for improvement was unmistakable evidence that the townspeople claimed the tract as a part of the townsite of Norman.

Each sub division of the SE of Sec. 30, and each subdivision of the Wof the SW of Sec. 23, were at that time used by said town for the purpose of trade, business and residence, and it is estimated that eight hundred people resided there. There can be no doubt but that these people, who had long before this time, organized a municipal government, controlled and exercised authority over both of these quarter sections, and that they claim both as a townsite. Their claim was notorious, and understood by all at the time of Blakeney's application, they had selected both of the quarter sections as a townsite. Could they under the law then in force select the whole of these tracts? I think they could.

Section 2388 of the Revised Statutes, which was in force in Oklahoma in 1889, provides among other things referring to townsites, as follows: "and the entry or declaratory statement shall include only such land as is actually occupied by the town" etc. This was the identical language of the act of May 23, 1844, (5 Stat., 657).

In discussing the proper construction to be placed on the last named act, the Hon. Caleb Cushing, Attorney General of the United States, said that:

It is obvious that, in municipal settlement, as well as agricultural, there must be space of time between the commencement and the consummation of occupation. There will be a moment when the equitable right of the agricultural settler is fixed, although he have as yet done nothing more in the way of improving than to cut a tree, or drive a stake into the earth. And it may be long before he improves each one of all his quarter-quarter sections. So, in principle, it is in the case of settlement for a town. We must deal with such things according to their nature. Towns do not spring into existence consummate and complete. Nor do they commence with eight houses, systematically distributed, each in the centre of a forty-acre lot. And in the case of a town settlement of three hundred and twenty acres, as well as that of a farm site of one hundred and sixty acres, all which can be lawfully requisite to communicate to the occupants the right of pre-emption to the block of land, including every one of its quarter-quarter sections-is improvement, or indication of the improvement, of the entire block-acts of possession or use regarding it, consonant with the nature of the thing. That, in a farm, will be the erection of a house and outhouses, cultivation, and use of pasturage or woodland in a town, it will be erecting houses or shops, platting out the land, grading or opening streets, and the like signs and marks of occupation or special destination.

(Opinions of Attorneys General, Vol. 7, page 733).

The townsite claimants in this case had selected the eighty acres in question as a part of their townsite before Blakeney applied to make an entry on the same, their selection was evidenced at the time by the fact of the survey of the parts thereof, platting the whole thereof, and generally controlling said tract and exercising jurisdiction thereover, besides many of the lots had been located by citizens of the town, and some of them had been improved, while on others buildings were in process of erection.

At the time of the hearing, on June 10, following the date of Blakeney's application, there were about twenty-five houses on the eighty acres in question, and more than a hundred people resided therein.

This fact is important only in so far as it shows the completion of improvements then begun or in contemplation.

There exists no reason for disturbing the departmental decision of July 8, 1891. Said motion is accordingly denied.

TIMBER CULTURE CONTEST-APPLICATION TO ENTER.

BLUDWORTH v. AUGUSTINE ET AL.

An application to enter filed with the initiation of a timber culture contest takes effect as of the date when filed, on the cancellation of the entry under attack, and excludes intervening adverse claims.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, October 14, 1891.

I have considered the case of J. M. Bludworth v. J. L. Saunders and Adam Augustine v. the same, which also involves a controversy be

2565-VOL 13- -26