In the opinion supra it was said, in speaking of the title of the railroad company, "It is not necessary that it should be a legal or valid one. It is sufficient if it be colorable."

For the reason given your office decision is hereby affirmed.

CONTEST AFFIDAVIT—ATTORNEY-NOTARY PUBLIC.

TALLEY . GASS.

In those States or Territories whose laws do not forbid an attorney to administer an oath to a client, the necessary oath to a contest affidavit may be administered by an officer or notary who is also the attorney of the contestant; but in States where the local laws forbid such practice it will not be allowed by the Land Department.

The case of Werden r. Schlecht, 20 L. D., 523, overruled, and section 13, instructions of December 15, 1885, 4 L. D., 297, modified.

Secretary Francis to the Commissioner of the General Land Office, Jan(I. H. L.)

uary 18, 1897.

(C. W. P.)

George I. Talley has appealed from the decision of your office of July 27, 1895, dismissing his contest against the homestead entry, No. 933, of Addie E. Gass, of the SE. of Sec. 15, T. 28, R. 11, Alva land district, Oklahoma Territory.

The ground of said decision is that the affidavit of contest was made before the contestant's attorney.

At the hearing the defendant moved to quash the proceedings, on the ground that the affidavit of contest was not properly verified, it being sworn to before the contestant's attorney. The register and receiver overruled this motion, and the case was heard upon the testimony offered. The local officers found for the defendant. The contestant appealed. Your office held that it was error in the local officers not to dismiss the contest on said motion of the defendant, saying:

The affidavit was made before the contestant's attorney. The evidence was before you that such was the case at the time it was filed, as the affidavit and power of attorney were on one and the same sheet of paper, and it should not have been received by you. No notice should have been issued thereon. The Department has ruled that the affidavit of a party taken before his attorney as notary public, will not be accepted by the Department,

And you cite the case of Werden . Schlecht, 20 L. D., 523, as authority for your decision.

Upon further consideration of the question presented, the Department is led to the conclusion that the doctrine announced in the case of Werden v. Schlecht, cited by your office, is not sound, and the same I will not be followed.

In the case of William R. Sutley, 3 L. D., 248, it was held, after a thorough discussion of the subject, that the Code of Dakota, fairly construed, did not forbid an attorney to administer the necessary oath to a contest affidavit, and that the contest affidavit, which was executed

before the contestant's attorney, was not invalid. This decision was followed in the case of Hopkins v. Daniels, 4 L. D., 126.

The laws of Oklahoma on the subject of affidavits and depositions are the same as those of Dakota, cited in the case of William R. Sutley, supra, and such laws not forbidding it the contest affidavit as made in this case will be accepted.

The rule in such cases hereafter will be that in those States or Territories whose laws do not forbid an attorney to administer an oath to a client, the necessary oath to a contest affidavit may be administered by an officer or notary who is also the attorney for the contestant; but in States where the local laws forbid such practice it will not be allowed. Section 13 of the circular of instructions issued December 15, 1885 (4 L. D., 297-9), is to that extent modified; and the case of Werden v. Schlecht, so far as in conflict with these views, is overruled.

Your office having dismissed the contest without considering the case on its merits, the record is returned for such consideration, and in view of the delay caused by the proceedings already had you are requested to act upon the case as early as practicable.

FOOTE v. MCMILLAN.

Motion for review of departmental decision of March 7, 1896, 22 L. D., 280, denied by Secretary Francis, January 18, 1897.

COAL LAND-FINAL PROOF-LIFE OF FILING.

SKOYEN v. HARRIS.

A coal land claimant who appears, on the last day of the life of his filing, at the local office and within the business hours designated by official regulations, and is prevented from submitting his final proof and making payment at such time by the receiver's office being closed contrary to said regulations, should not be regarded as in default, where such proof and payment are tendered on the next business day.

Secretary Francis to the Commissioner of the General Land Office, Jan(I. H. L.) uary 18, 1897.

(E. B., Jr.)

This is a contest under the coal land law-sections 2347 to 2352, inclusive, of the Revised Statutes.

The record shows that John Harris filed his coal declaratory statement No. 992, March 23, 1893, for the SE. of Sec. 16, T. 21 N., R. 7 E., Seattle, Washington, land district, alleging that he came into possession thereof on the twentieth of the same month, and had located and opened a valuable mine of coal and expended $100 in labor and improvements thereon; that on March 30, 1894, Peter O. Skoyen filed his coal

declaratory statement No. 1028, for the same land, alleging possession on and since March 21, 1894, and that he had located and opened a valuable mine of coal and expended $20.00 in labor and improvements thereon; that on May 21, 1894, Harris applied to purchase the land, and offered proof and tendered payment therefor; that on July 7, 1894, after notice of Harris' application, proof and tender, Skoyen filed a protest against the same, on the ground that Harris' declaratory statement had fully expired by limitation of law before he tendered proof and payment for said land, more than fourteen months having intervened between the date of his alleged possession and the date of his said proof;

that a hearing was duly had in January following; that on April 2, 1895, the local office decided that although the evidence showed "that Harris has expended about $2,000 in money and work upon this land and has acted in apparently good faith," yet by his failure to apply to enter and tender proof and payment therefor within one year and sixty days from the commencement of his possession and improvements he forfeited his right thereto "as against an adverse claimant," and rejected his application to purchase, and, in effect, recommended the cancellation of his coal filing; that on appeal by Harris your office, on July 2, 1895, decided that Skoyen had failed to show that he had opened and improved a coal mine on the land, or that he was acting in good faith, that he did not therefore have a valid adverse claim to the land when Harris applied to purchase, that Harris, having otherwise complied with the law, might enter the land after one year and sixty days from the commencement of possession and improvements, in the absence of any valid adverse claim, that Skoyen's filing should be canceled and Harris' final proof received, and he be allowed, upon payment, to make entry of the land; and that a motion by Skoyen for rehearing was denied by your office October 7, 1895.

An appeal by Skoyen brings the case before the Department, error being assigned as follows:

I. Error to decide that the proof of contestee's good faith is ample and entirely satisfactory.

II. Error to decide that contestant has failed to show that he was acting in good faith.

III. Error to decide that contestee's possession must be regarded as having commenced upon March 20, 1893, instead of about the middle of February, 1893, the time he states in his testimony that he came into possession.

IV. Error to decide that Harris made tender of payment on May 21, 1894, or at any other time; it appearing that tender was not made by him, and that he had no money of his own or in his possession for such purpose.

V. Error to decide that on said 21st day of May, 1894, when such tender is alleged to have been made, there was "no valid adverse claim" to the land applied for by him.

VI. Error to decide that said application of Harris to purchase said land to be allowed.

VII. Error to decide that the coal declaratory statement No. 1028 of protestant be canceled.

VIII. Error to decide that it is immaterial what contestant has done in the way of improvements upon said land since the day when contestee (Harris) tendezd proof and payment therefor.

IX. Error to refuse said petition for re-hearing.

X. Error to decide that said petition for re-hearing alleged no sufficient grounds for a re-hearing.

XI. Error not to decide

First: That said final proof and payment by Harris were not made in time. Second: That the possession of said Harris was commenced in February, 1893, and that proof and payment should have been tendered in April, 1894.

Third. That the declaratory statement No. 1028 of contestant is a valid adverse claim to said land and that said contestee had no right thereto as against said adverse claim.

Fourth: That the work done by the said Skoyen as a basis for said coal declaratory statement filing was sufficient and that he was entitled to his full time of one year and sixty days after taking possession of said land in which to open and develop the coal deposits thereon and to show his good faith in the premises, and that the amount of his improvements was not a material question in the hearing upon the right of Harris to enter said land, it being true that his application to enter was made too late.

Fifth That said Skoyen has since and within the life of said filing made such improvements, and that his good faith is thus demonstrated.

Sixth: The application of Harris to enter said land should be denied and his coal declaratory statement No. 992 canceled, and that said land be awarded to Peter 0. Skoyen under his coal declaratory statement No. 1028 and the final proof and payment tendered thereon.

His pos.

Upon the question of Harris' good faith the evidence abundantly sustains the conclusions of your office and the local office. session and improvements have been continuous during all the period in controversy. He has opened and improved a valuable mine of coal, and expended $2,000 in money and improvements to that end on the land. At the hearing his good faith, except as alleged in the protest and hereinbefore indicated, was openly admitted by the protestant. Upon the contention of the appeal that Harris' "possession" commenced "about the middle of February, 1893," instead of March 20, 1893, it is sufficient to say that although the evidence shows that Har ris commenced prospecting for coal on the land and did some work thereon and discovered coal during February, 1893, it does not show that he had possession of the land or went upon it to take possession as a claimant under the coal land law until, as alleged in his filing, on March 20, 1893.

Under the coal land law, as contained in the sections of the Revised Statutes above indicated, a claimant seeking a preference right to purchase, and coming lawfully into possession of public coal land, is entitled, upon continued compliance therewith in good faith, to hold and possess the same as against any other party claiming under the same law, for the period of one year and sixty days "after the date of actual possession and commencement of improvements on the land" (sections 2349 and 2350, Revised Statutes). This period, in the case of Harris' filing, within which he might make entry of the land, expired on Saturday, May 19, 1894.

Harris testifies that by reason of an attack of rheumatism during three days preceding the 19th, he was delayed in reaching the local office, and did not, therefore, arrive there until about three o'clock P. M. of the 19th with his proof, and money to pay for the land, when he found the office closed. It appears from the register's statement that only the receiver's office was closed, that office closing regularly at one o'clock P. M. on Saturday to enable the receiver to make deposits of public money. The record, as already stated, shows that tender of proof and payment was made on Monday, March 21, following.

There is no evidence to controvert the truth of Harris' testimony as to his previous sickness, and his presence at the land office on Saturday, May 19, 1894, with his proof and money to pay for the land. The register's statement corroborates Harris as to the receiver's office being then closed. Under the law as expressed in official regulation governing his attendance, the receiver should have been there at the time Harris arrived, and thence on until four o'clock P. M. (General Circular, p. 120.) The law gave Harris until that hour within which to comply with its requirements. Standing ready to comply within the time allowed, and being prevented from so doing only by the previous closing, contrary to law, of the receiver's office, his right should not thereby suffer any prejudice or impairment. Harris' tender of proof and payment should be regarded in contemplation of law as duly made at the hour he alleges, and therefore within the specific statutory life. of his claim.

It is unnecessary in this view of the case to pass upon any other question sought to be raised by the appeal.

The contest of Skoyen is dismissed, and your office decision of July 2, 1895, as herein modified, affirmed.

Harris will be allowed to duly complete his entry, subject, however, to any valid adverse claim of the State of Washington under its grant of school lands.

SETTLEMENT RIGHT—SUCCESSFUL CONTESTANT-RELINQUISHMENT.

GOURLEY V. COUNTRYMAN.

While as between two parties claiming the same tract, the settlement right of one may not defeat the superior right of the other as a successful contestant, yet if such contestant thereafter enters the land, and relinquishes the entry, such settlement right, if maintained, will defeat the subsequent entry of a third party.

Secretary Francis to the Commissioner of the General Land Office, Jan(I. II. L.) uary 18, 1897.

(C. W. P.)

This case involves the N. of the NE. of Sec. 28, T. 11 N., R. 3 W., Oklahoma land district, Oklahoma.

The record shows that on May 11, 1889, A. G. Blauvelt made home. stead entry of the above described land; that on October 17, 1889, William Gourley contested said entry, on the ground that the entry10671-VOL 24-4