The matter of allowing attorneys before the Department to inspect the records of the Commissioner's office was fully discussed in the case of W. H. Lamar (5 L. D., 400). It appears that Mr. Lamar applied for permission to examine a record for the purpose of determining whether he would accept a retainer in the case, and the privilege was denied him by the Commissioner; whereupon he appealed to the Department, and it was decided that he had the right to do so. In discussing the matter, Mr. First Assistant Secretary Muldrow said:

Attorneys have always been allowed by the courts to enter a special or limited appearance, and it would seem that attorneys practicing before this Department, in good standing, ought to be allowed to inspect the records of your office, including all papers upon which action has been taken affecting the rights of parties. The mere fact that a case is pending in one division of your office rather than in another can make no difference in the principle. It ought not to be presumed that attorneys of good standing in this Department will disregard their obligations to be faithful to the Department as well as to their clients.

No good reason is shown why an attorney practicing before this Department should have any less privileges than would be accorded to any other reputable person seeking to inspect the records of your office. While it must be conceded that a large discretion should be given to your office, yet that discretion is a legal one and should be exercised in accordance with the regulations of the Department. When, therefore, any attorney practicing before this Department represents that he has been applied to by a party in interest to appear for such party in any case pending in your office, and that he desires to inspect the record of such case to learn the nature thereof and ascertain the amount of fee to be charged for his services in appearing for such party, such attorney should be allowed to inspect the record and all papers upon which action has been taken by your office adverse to the interest of such party.

It seems to me that this ruling can with propriety be applied to the case at bar, so soon as it reaches the proper stage. It is evident in the Lamar case that action had been taken against his client that was adverse to his interest. After action has been taken by the Commissioner's office, such as ordering a hearing with the view of canceling au entry, or recommending a suit to be brought to annul a patent, there seems to be no substantial objection to allowing an inspection of the records of the Commissioner's office. Before such final action has been taken, the manifest impropriety of permitting the records to be examined is clearly apparent, because until that time the record is confidential, which may or may not on examination result in final action adverse to the party, but thereafter the reports cease to be privileged and confidential, so far as the interests of the parties affected thereby are concerned.

Applying this test to the case at bar, it would seem as if such final action had not yet been taken by the Commissioner's office as to warrant the granting of the request of Mr. Horton. It is true the Commissioner had prepared a letter recommending the Secretary of the Interior to request the Hon. Attorney General to bring suit to cancel the patents, but that letter has not been formally transmitted to the

Secretary of the Interior for consideration, and until that is done, in my judgment, such final action has not been taken as contemplated.

I am therefore of the opinion that, if the Commissioner of the General Land Office is still of the opinion that suit should be brought and formally recommends it, then the matter would be in such condition as would permit "an attorney in good standing before the Land Departmeut" to inspect the record, but until that is done, the records should be regarded as confidential.

Approved, April 30, 1897:

C. N. BLISS,

Secretary.

RAILROAD GRANT—INDEMNITY—ACT OF JUNE 22, 1874.

OREGON AND CALIFORNIA R. R. Co.

An indemnity selection under the act of June 22, 1874, based on a relinquishment, necessary for the protection of entrymen, under the rulings then in force as to the date when the rights of the company attached, should not be defeated by a changed ruling as to the attachment of rights under the grant, where the lands so selected have been sold by the company, and the grant is not enlarged by the approval of the selection.

1897.

Secretary Bliss to the Commissioner of the General Land Office, April 29, (W. V. D.) (F. W. C.) The Oregon and California Railroad Company has appealed from your office decision of January 17, 1896, holding for cancellation a certain list of selections made March 14, 1877, under the provisions of the act of June 22, 1874 (18 Stat., 194), covering lands to the amount of 1081.74 acres within the Oregon City land district, Oregon.

On October 29, 1869, this company filed in your office a map showing the definite location of its line of road from Portland to Jefferson, in T. 10 S., R. 3 W.; the distance covered by said location being about sixty-one miles. Said map was transmitted to this Department November 4, 1869, and returned with the approval of Secretary Cox January 29, 1870.

Section 2 of the act of July 25, 1866 (14 Stat., 239), making the grant under which the company claims, after describing the extent of the grant, provides, that upon filing

in the office of the Secretary of the Interior a map of the survey of said railroad, or any portion thereof, not less than sixty continuous miles from either terminus, the Secretary of the Interior shall withdraw from sale public lands herein granted on each side of said railroad, so far as located, and within the limits before specified.

It appears that in the case of Swift v. California and Oregon Railroad Company (2 Copps Land Laws 733), involving a consideration of the grant in question, it was held that the right of the land grant company attaches to the granted land "upon the filing of the map of survey of its road;" it having then done all within its power to identify the land.

Under this ruling the right of the company opposite the lands in question attached October 29, 1869, at which date, it appears from au abstract furnished by your office, that five of the tracts relinquished and made the bases for selections under the act of 1874, were free from adverse claims, to wit, the NE. † of Sec. 1, T. 4 S., R. 1 E.; the NE. † of Sec. 3, T. 4 S., R. 1 E.; the SW. of the NE. and lots 2, 3 and 4, Sec. 7, T. 4 S., R. 4 E.; the NW. of Sec. 7, T. 4 S., R. 2 E.; and the N. of the NE. 4 of Sec. 27, T. 2 S., R. 4 E. Subsequently, and prior to January 29, 1870, entries were allowed upon these lands, and upon the request of your office the company relinquished in favor of those entries under the provisions of the act of June 22, 1874 (supra), and on March 14, 1877, as before stated, made its selections now under consideration. In the case of California and Oregon Railroad Company . Pickard (12 L. D., 133) it was held that the right of the company under the grant of July 25, 1866 (supra), does not attach until the map of definite location has been accepted by the Secretary of the Interior, which in the case under consideration was on January 29, 1870. At that date the lands relinquished by the company were embraced in entries of record, and for that reason your office decision appealed from holds the lands relinquished were excepted from the company's grant; that its relinquishment was unnecessary, and that no right was gained by its selection under the act of June 22, 1874 (supra).

This act provides

That in the adjustment of all railroad land grants, whether made directly to any railroad company or to any State for railroad purposes, if any of the lands granted be found in the possession of an actual settler whose entry or filing has been allowed under the pre-emption or homestead laws of the United States subsequent to the time at which, by the decision of the land office, the right of said road was declared to have attached to such lands, the grantees, upon a proper relinquishment of the lands so entered or filed for, shall be entitled to select an equal quantity of other lands in lien thereof from any of the public lands not mineral and within the limits of the grant not otherwise appropriated at the date of selection, to which they shall receive title the same as though originally granted. And any such entries or filings thus relieved from conflict may be perfected into complete title as if such lands had not been granted: Provided, That nothing herein contained shall in any manner be so construed as to enlarge or extend any grant to any such railroad or to extend to lands reserved in any land grant made for railroad purposes: And provided further, That this act shall not be construed so as in any manner to confirm or legalize any decision or ruling of the Interior Department under which lands have been certified to any railroad company when such lands have been entered by a pre-emption or homestead settler after the location of the line of the road and prior to the notice to the local land office of the withdrawal of such lands from market.

From the recital above made it is apparent that under the ruling in force at the time the company relinquished upon the request of your office, its rights were held to have attached on October 29, 1869; conse quently its rights were superior to those who entered after that date, and following its relinquishment it made due selection under the act above quoted.

This selection was made, as before stated, in 1877, and remained unacted upon until considered in the decision of your office appealed from. In the mean time the company reports that it has sold part of the lands selected, and the ruling as to the time of the attachment of rights has been changed. Under these circumstances it would seem that the company's selection should be approved; especially as the graut is not enlarged thereby. Should these selections fail, the company would nevertheless be entitled to select other lands within its indemnity limits.

This might not now be possible, for the indemnity withdrawal, which was recognized in 1877 at the time of these selections, has been revoked since 1887 and the lands within said limits disposed of as other public lands.

As to the tracts selected in lieu of those before described, your office decision is therefore reversed..

The remainder of the tracts relinquished and made the bases for the selections under consideration, the abstract shows, were covered by homestead entries both on October 29, 1869, and July 29, 1870, so that the tracts were clearly excepted from the company's grant under either ruling, and its relinquishment, as to said tracts, was unnecessary and conferred no right of selection upon the company.

As to the tracts selected in lieu of these tracts, your office decision is affirmed.

PRACTICE-NOTICE-AFFIDAVIT OF CONTEST-CORROBORATION. VINCENT v. GIBBS.

The Rules of Practice do not require that the notice of a hearing should be served within the jurisdiction of the local office from which it is issued.

A notice of contest is sufficient if it substantially follows the affidavit of contest. A motion to dismiss a contest for informality in the affidavit of contest, and the want of a corroboratory affidavit, may be properly overruled by the local office, as its jurisdiction is not dependent upon the affidavit of contest, but upon the service of notice.

Secretary Bliss to the Commissioner of the General Land Office, April 29, (W. V. D.)

1897.

(C. W. P.) October 23, 1893, Ira L, Gibbs made homestead entry No. 2070 of the SE. of Sec. 25, T. 27 N., R. 13 W., Alva land district, Oklahoma. On November 2, 1893, Thomas H. Vincent filed affidavit of contest, alleging, in substance, that he is qualified to make entry for said tract; that at one o'clock and twelve minutes after noon of September 16, 1893, he settled on the land for the purpose of making it a home; and that he was the first settler thereon.

On October 15, 1894, a hearing was had, at which both parties were present, in person and by counsel.

Before the testimony was submitted Gibbs' counsel appeared specially, and filed a motion to quash the notice of contest, for the rea sons: (1) that the same was not served on Gibbs within the jurisdiction of the land office, at Alva, Oklahoma Territory; (2) does not correspond with the allegations in the affidavit of contest; and (3) fails to show that Vincent is entitled to enter the land.

This motion the local officers overruled, and Gibbs excepted.

Gibbs' counsel then filed a motion to dismiss the contest, for the reasons (1) that the notice was not properly served, and (2) does not correspond with the affidavit of contest; (3) that the affidavit of contest does not show that Vincent is qualified to make entry; (4) that said affidavit is not properly corroborated, in this, that the corroborating affidavit does not show the date when signed, or that an oath had been administered to the witness; and (5) because no return or service of notice had been made to the local office.

Vincent then asked to have the officer before whom the affidavit was made affix his signature to the jurat, which the local officers granted, overruling Gibbs' objection thereto, and to which he excepted.

The local officers then overruled the motion to dismiss, and Gibbs excepted.

On April 3, 1895, the local officers rendered a decision, finding that Vincent's right to the land is superior to that of Gibbs, and recommending that Gibbs' homestead entry be held subject to said right. Gibbs appealed.

Your office affirmed the judgment of the local officers. Gibbs appeals to the Department.

The motions to quash and to dismiss the contest were properly overruled.

1. The rules of practice do not require that the notice of hearing should be served within the jurisdiction of the register and receiver. 2. The objection that the notice of contest does not correspond with the contest affidavit, and does not show that the contestant is qualified to enter the land, if successful, is without force. The qualification of the contestant is sufficiently set forth in his affidavit of contest, and the allegation of priority of settlement in the notice of contest is substantially the same as the allegation in the affidavit of contest. Rule 8 of practice, paragraph 6, only requires that the notice shall give the name of the contestant, and briefly state the grounds and purpose of the contest.

3. The objection to the affidavit of contest that it was not properly corroborated, and to the action of the local officers in allowing the notary to insert the date and affix his signature to the affidavit of con test, affords no ground for reversal of the decision of the local officers, for the reason that an affidavit of contest, while provided for in the rules of practice, is not essential; jurisdiction is obtained by service of notice. Consequently, it is not necessary to consider the action of