CONTESTANT-PROTESTANT-APPEAL.
EMBLEN v. WEED.

One who charges a default against an entryman, furnishes proof in support thereof, and pays the costs of taking his own testimony, is not a protestant, but a contestant, even though he formally waives all claim to a preference right of entry in the event of success, and as such contestant is entitled to the right of appeal. Acting Secretary Chandler to the Commissioner of the General Land Office, December 23, 1891.

By your letter of August 13, 1891, you transmitted the application of George F. Emblen, asking that the record of the proceedings in the case of George F. Emblen v. George F. Weed, involving the pre-emption cash entry of the latter for the SE of Sec. 22, T. 2 N., R. 48 W., Akron land district, Colorado, be certified to the Department, under rules 83 and 84 of Rules of Practice.

His application is based upon your decision of May 28, 1891, which was adverse to him, and wherein he was denied the right of appeal. A motion for a review of that decision was denied by you on the 29th of July, 1891. Copies of these decisions form part of the motion papers before me. The others comprise a specification of errors which it is alleged those decisions contain, the arguments of counsel for plaintiff in favor of the motion, and for defendant in opposition thereto.

From the papers before me, I learn that Weed made cash entry for the land on the 19th of September, 1885, and received final certificate that day. On the 4th of October, 1889, Emblen filed affidavit of contest, which resulted in a hearing, and a decision by the local officers in favor of Weed.

On the day the hearing took place, Emblen filed in the local office a relinquishment of all preference right of entry upon said land under the second section of the act of May 14, 1880 (21 Stat., 140), and upon his request, the costs of the contest were adjusted under rule 55 of Rules of Practice.

Emblen having relinquished all preference right to make entry for the land, and having declined to pay the costs of the contest, you regarded him as a protestant in your decision of May 28, 1891, and applied the doctrine of Martin v. Barker (6 L. D., 763), to the case, and denied him the right of appeal to the Department from your decision, which, like that of the local officers, was in favor of Weed.

Soon after obtaining final certificate for the land, Weed sold and conveyed the greater portion of it to different parties, and at the time of the rehearing, which took place upon your direction, it was a part of the town of Yuma, and was occupied by a railroad station, and by the residences and places of business of a large number of people.

In your decision of July 29, 1891, in which you denied Emblen's motion for a review of your former decision in the case, you held that

the entry of Weed was confirmed by section 7, of the act of March 3, 1891 (26 Stat., 1095), and would pass to patent under that act, independent of the fact that it was sustained on its merits and entitled to patent on that ground.

It is claimed that you erred in applying the doctrine of the case of Martin v. Barker to Emblen, and also in applying the seventh section of the act of March 3, 1891, to the case. Emblen insists that notwithstanding his relinquishment of preference right of entry to the land, given him by the second section of the act of May 14, 1880, (21 Stat., 140), he remained a contestant, and did not by that act become simply a protestant. He also insists that by paying the costs of the contest under rule 55 of Rules of Practice, he is entitled to all rights awarded to contestants prior to the passage of the act of May 14, 1880. Rules 54 and 55 of Rules of Practice are as follows:

Rule 54 Parties contesting pre-emption, homestead, or timber-culture entries and claiming preference rights of entry under the second section of the act of May 14, 1880 (21 Stat., 140), must pay the costs of contest.

Rule 55. In other contested cases each party must pay the costs of taking testimony upon his own direct and cross examination.

Prior to the passage of the act of May 14, 1880, the preference right of entry was unknown, but it was not then claimed that a contestant was not a party in interest, and that he had no right of appeal. A distinction was recognized between a contestant and a protestant before that act became a law. A person who charged a default against an entryman, and produced evidence in support of such charge, and paid the costs of taking testimony upon his own direct and cross examination, as required by rule 55, was a contestant, and entitled to the right of appeal, while a person who simply charged a default and furnished the information upon which it was based, but paid no part of the costs of the proceedings which resulted from such charge, was a protestant, without interest in the case, and without the right of appeal.

In your decision of May 28, 1891, after reciting all the facts and circumstances of the case, you conclude by saying:

In the disposition of this case, as aforesaid, Mr. Emblen, in view of the fact that he claims no preference right of entry under act of May 14, 1880, and the fact that by letter addressed you July 26, 1890, it was ruled, that as to costs, Practice Rule 55 applied to him, must be considered merely as a protestant. The ruling of the Department in the case of Martin v. Barker (6 L. D., 763), appears applicable. Hence no appeal from this decision to the Honorable Secretary will be allowed.

It is unnecessary to cite authorities holding that an appeal will lie from an order made by you denying a party a right. It was so decided in 3 L. D., 516, 6 L. D., 124, 9 L. D., 377, and in numerous other cases. By the above quotation from your decision, it seems to me that Emblen occupied the same relation to this case that all contestants did to contest cases prior to the passage of the act of May 14, 1880. He charged default on the part of the entryman, he furnished proof in support

thereof, and he paid the costs of taking his testimony. This made him a contestant, and gave him the right of appeal.

In the case of Ewing v. Rourke (12 L. D., 538), it was correctly held that the right of appeal cannot be exercised by one who is not a party in interest, but in the case of McKinley v. Walsh (13 L. D., 507), it was held that "A protestant against pre-emption final proof who desires to clear the record in order that he may enter the land, has such an interest as entitles him to be heard on appeal." The doctrine of that case, applied to the one under consideration, would most certainly find in Emblen a party with sufficient interest to entitle him to be heard on appeal.

I have given the case careful consideration, and my conclusion is, that by relinquishing his preference right to make entry for the land, Emblen did not change his relation to the case from that of contestant, to that of protestant, but that by prosecuting the contest, and paying his costs thereof, as required by rule 55 of Rules of Practice, he continued a contestant, with the right of appeal. Your decision denied him that right, and I think he is entitled to the relief asked for in the application before me. You will therefore certify the proceedings in the case to the Department, and suspend further action until they are passed upon.

SURVEY-ISLAND-NON-NAVIGABLE STREAM.

J. H. LESSARD.

An application for the survey of an island in a non-navigable stream will not be allowed.

Secretary Noble to the Commissioner of the General Land Office, December 23, 1891.

I am in receipt of your letter of October 19, 1891, transmitting for departmental action the application of J. H. Lessard of Waterloo, Iowa, for the survey of two islands situated in Cedar river, Sec. 22, T. 89, R. 13 West, Iowa.

The application is accompanied by the affidavits of Samuel H. Baum and E. J. Chapman, stating that the islands contain about five acres; that the width of the channel on either side between the islands and the main shore is one hundred and fifty feet on the north and two hundred feet on the south, and the depth thereof at ordinary stages of the water is from four to six feet.

That the islands are about two feet above high water mark, not subject to overflow and the land fit for agricultural purposes; that the improvements situated thereon consist of a small house on each island, built since service of notice and valued at $75.

Notice was duly served upon the parties, owning the lands upon opposite sides of the river and nearest thereto, and they have filed pro

tests against the survey, claiming the proprietorship of the islands under riparian rights.

Neither the application for the survey nor the accompanying affidavits contain an averment that the river is navigable.

E. J. Cowin, president of the Cedar River Park Association, in his protest, which is sworn to, states, that said association is the lawful owner and in possession of the entire river frontage (on the north side); that the islands are immediately in front of the land so owned by the association.

J. E. Sedgwick, in his protest (also sworn to), represents himself as the owner of the river front on the south of side of the river and opposite the two islands-throughout their whole extent

The two protests are made on the following ground, namely:

1. Cedar river is not a navigable stream,

2. That said islands are not above high water mark,

3. That they are subject to overflow,

4. That they are not fit for agricultural purposes,

5. That the configuration of the shore of the main land has materially changed since the original survey of the water front on the mainland, 6. That protestants are the owners of the islands.

Several affidavits are filed in support of the protests, from which it appears that the islands are subject to overflow and are not fit for agricultural purposes; that they are composed of light sandy soil and sand drift, and are densely covered with low underbrush, briars and vines, and are prevented from being washed away from the thickly matted roots.

The city of Waterloo is represented as being one and a half miles below the islands; that there has been maintained, by the Union Mill Company, at said city a dam across said river-having a water head from five to six feet; that the water at the islands is at all times increased in depth by reason of said dam; that there would be no channel between the north shore and the north island but for said dam.

By the government survey made in 1846 lot No. 3, on south side of river, as meandered contained 22.40 acres; a new survey was made of said lot in February, 1890, when it was found to contain but 17.43 acres. Protestants state that this loss was caused by the overflow and shifting of the river current.

Those rivers are regarded as public navigable rivers in law which are navigable in fact. Packer v. Bird (137 U. S., 666). It is not shown that Cedar river at Waterloo is a navigable stream; on the contrary, several affidavits are filed which show that it is not.

Section 5248 of the Revised Statutes of the United States is as fol lows:

So much of the Iowa river within the State of Iowa as lies north of the town of Wapello shall not be deemed a navigable river or public highway, but dams and bridges may be constructed across it.

The Cedar river is a tributary of the Iowa, and the junction of the two rivers is about ten miles north of Wapello, so that the Cedar river is, in effect, declared to be non-navigable by public statute, and its dams and bridges prevent its use as a highway of commerce over which travel and trade are or may be conducted. It is, therefore, not navigable in fact.

In regard to streams not navigable, the common law rules of riparian ownership were incorporated into the act of May 18, 1776 (1 Stat., 464), which provides that in all cases where the opposite banks of any such stream shall belong to different persons, the stream and the bed thereof shall be common to both. Railroad v. Schurmeir (7 Wall., 272).

I think it, also, sufficiently appears that the islands sought to be surveyed are not fit for agricultural purposes, since they are subject to overflow, and I concur in your recommendation that the application be disallowed.

PRACTICE-REVIEW-REHEARING-IMPROVEMENTS.

FORBES v. COLE.

A motion for review of a decision is based upon some error of the tribunal rendering the same, either in the finding of fact from the record, or in the interpretation of the law governing the fact.

A motion for a rehearing is based upon newly discovered evidence, or some error in the trial of the case, by which the complainant is deprived of a substantial right. Motions for review, and motions for rehearing, invoke different and distinct remedies and should be filed separately.

A motion for rehearing on the ground of newly discovered evidence will not be granted unless it appears that the alleged evidence would warrant a change of judgment. The purchase of improvements made by a prior occupant is a compliance with the law in the matter of improvements, if the purchaser makes his home on the land. Secretary Noble to the Commissioner of the General Land Office, December 23, 1891.

William Forbes, the contestant in the case of said Forbes v. L. E. Cole, has filed a motion for a rehearing, reconsideration, and review of departmental decision of April 4, 1891, awarding to the latter the NW. of Sec. 23, T. 25 S., R. 9 E., M. D. M., San Francisco, California. The reasons assigned for the motion are:

1st. That said decision is based upon a mistake of the facts.

2nd. That it is based upon a mistake of the pre-emption law in regard to settlement and good faith in inhabitancy, cultivation and improvement of the land.

The counsel for Forbes in this motion invokes two remedies, which are entirely different and distinct in character, and should properly be separately filed.

A motion for review of a decision is based upon some error of the tribunal rendering the same, either in the finding of fact from the record, or in the interpretation of the law governing the facts.